¶1This was an action upon the case, brought by Beeney against Johnston for fraudulent representations alleged to have been made by the latter in regard to certain lands in Kansas exchanged by him to Beeney for land in Illinois.
¶2The declaration alleges that Johnston falsely and fraudulently represented that the Kansas land was good land; that from ninety to one hundred acres was good bottom land; that the balance was nice table land; that there was on the land a peach orchard of one hundred good bearing trees, and a. grove of forty-nine maple trees; that twenty-four acres of the land had been in cultivation, and had a post and rail fence around it, and a house on it in which the lumber had cost one hundred dollars, and that the taxes had been paid. That these representations were false, and known to be so by Johnston, and that Beeney, relying upon them, was induced to make the exchange; that the Kansas land was valued at sixteen hundred dollars, and the Illinois land exchanged therefor at two thousand dollars; Johnston assumed the payment of a mortgage on the Illinois land of eight hundred dollars, and Beeney gave his notes for four hundred dollars.
¶3The parties exchanged deeds, and each still retains the title so conveyed. The general issue was pleaded by Johnston, a trial had before a jury, resulting in a verdict for Beeney for $800, a motion for a new trial overruledj and judgment upon the verdict.
¶4Appellant brings the case here, and assigns for error the rulings of the court below.
¶5On the trial appellee testified to the representations of appellant in reference to the Kansas land, and then called one Henry Willaby, who was permitted to testify, against the objections of appellant, that Johnston had made similar representations to him about one year before. The representations were partly denied by Johnston, as a witness in his own behalf, and a conflict thereby created as to what was said by Johnston at the time of the trade.
¶6The evidence of Willaby seems to have been admitted for the purpose of corroborating appellee as to the representations made at the time of the trade, and thereby to give a preponderance of the evidence in his favor. This evidence we think inadmissible for such a purpose.
¶7If appellant made false representations to Willaby in 1876, in reference to his Kansas land, it does not follow that he made the same representations to appellee in 1877.
¶8In the case of Simpkins v. Berggren, 2 Bradwell, 101, the good faith of a party in giving a chattel mortgage was in issue, and evidence was offered tending to show that the mortgagor had on a previous occasion made a mortgage to another person, which was fraudulent. This evidence was held inadmissible, and that evidence of a previous fraudulent conveyance did not tend to prove the conveyance in question fraudulent.
¶9In the case of Whitemore v. Patterson, 6 Weekly Jurist, 419, it was held that evidence that a party made false representations to other parties, is not competent to prove that he made them to the plaintiff.
¶10In Murfey v. Brace, 23 Barbour, 561, it was held that false representations made by a person about purchasing goods, will not prove or tend to prove that he made similar representations to another firm of whom he purchased.
¶11This evidence does not tend to prove the fact that the representations testified to by appellee were made to him by appellant. BTor do we think it was proper as tending to show that appellee knew the statements made to be false. It does not follow that he knéw they were false, because he had told the same story to other persons. To be admissible for the purpose of showing the quo animo, representations must be made near the time of the transaction in question, and must appear to be part of a general scheme to defraud. Albany Law Journal, Aug. 2, p. 96.
¶12We also think the evidence in this case fails to sustain the verdict. In an action for fraudulent representations in the sale or exchange of land, when the plaintiff retains the title and does not offer to rescind the contract, the measure of damages is the difference between the land purchased as it was at the time, and what it would have been worth at the time, if it had been as represented by the vendor, to which may be added interest on this difference.
¶13There is no evidence in this record tending to show the difference in the value of the land as represented and as it really was at the time of the conveyance.
¶14Several witnesses gave their opinion as to the value of the land at the time or soon after the trade, and it is probable the jury arrived at their verdict by deducting the value of the land from the purchase price.
¶15When the vendor has made his representations good he has done all the law requires of him, and this the vendee is entitled to, although the land as he got it may have been worth more than the whole price paid for it.
¶16We also think the court erred in permitting the witness Dunseth to give his opinion of the value of the land. He admits that, he had no knowledge of the value of land in the neighborhood, and his opinion ought not to have been received as evidence.
¶17For these errors the judgment is reversed and the cause remanded.
¶18Reversed.