the inventor's ideas mechanically workable. | appellant. Facts are set out in the opinion. Sufficient to say that upon the record be- Jury returned a verdict for plaintiff in the fore us we do not find the alleged lack of amount of $2,745, with interest from March support therein to the finding of the trial 1, 1920, on which judgment was rendered, and court. from which defendant appeals. Modified and affirmed. Its judgment is therefore affirmed. STEVENS, C. J., and ARTHUR and DE GRAFF, JJ., concur. MILLER v. CONN. (No. 34395.) (Supreme Court of Iowa. March 14, 1922.) 1. Fraud 31-Remedies available. Dyer, Jordan & Dyer, of Boone, for appellant. T. J. Mahoney and F. L. Mackey, both of Boone, for appellee. ARTHUR, J. In February, 1920, appellee, then a resident of Estherville, Iowa, came to Boone, Iowa, with the intention of buying a farm if he could find one that was satisfactory. He was accompanied by a real estate dealer named Kennedy. They were met by one Cooper, of Boone, also a real estate dealer, who showed them a farm, but appellee did not deal for it. While in Cooper's office, another real estate agent named Page came A vendee, who has been induced to purchase land by fraudulent representations, has the option to either rescind the contract, or affirm it, and claim damages to make the bargain what it would have been, had the representa-in. Cooper told Page what appellee wanted, tions been true. 2. Estoppel 120-Held properly submitted to jury, though not so styled. Where the court submitted to the jury questions involved in a claimed estoppel by requiring that plaintiff negative or disapprove all matters set up in the plea of estoppel before a verdict could be found for plaintiff, defendant cannot claim that his defense of estoppel was not submitted, though the court did not submit a defense styled "estoppel." and asked if he knew of any farm for sale that might meet the requirements. Page suggested a farm owned by appellant, and appellee, with Cooper and Kennedy, went to the farm to examine it. Then they returned to Cooper's office, where appellant, in response to a telephone message, met them. Appellant priced his farm at $50,000. They all went to the farm again, and again returned to Cooper's office, and a contract was written and signed by the parties, by which appel 3. Fraud 65(1)-Issue of fraud in sale in lant sold to appellee the farm at the agreed gross held properly submitted. A complaint that court did not submit defendant's theory that farm was sold as an entirety was without merit, where the case was submitted on the theory of fraud claimed by the plaintiff asking for damages by reason of fraud and shortage in acreage, and plaintiff was required to prove every element of such claimed fraud, and the whole theory of the submission was that the sale was in gross. 4. Fraud 27-Shortage in acreage on sale in gross actionable. A vendee of land may recover damages by reason of a shortage in acreage, though the sale of the land was in gross, where he was induced to purchase by fraudulent representations of the vendor as to the acreage. price of $50,000 on the terms set forth in the contract. Afterwards appellee paid appellant for the farm, in accordance with the terms of the contract, with the exception of $200 of the purchase price, which was to be withheld until some defect in the title was cured, and about which there is no controversy in this case. This action is based on fraudulent representations as to the acreage of the farm. Plaintiff alleged, and offered evidence tending to prove, that defendant represented to him that the farm contained 100 acres, including the highways, and that the land inclosed within the fences contained between 94 and 95 acres; that said representations 5. Fraud 62-Damages for shortage in were false, and the other necessary premises acreage held excessive. Where seller of land for $50,000 falsely represented that there were 100 acres, including roads, and that there were between 94 and 95 acres inside the fences, when as a matter of fact there were only 94.54 acres, including the roads, and 90.01 acres inside fences, a verdict for $2,745 was excessive, and was reduced to $2,250. of a case based on such fraudulent representations. Defendant denied making representations of any kind to the plaintiff, showing or intending to show that the farm contained 100 acres, and averred that the farm was sold as an entirety for the sum of $50,000, and that the price was not based on $500, or any other sum, per acre. Defendant further alleged that, before the contract of purchase was signed, plaintiff was fully advised that Appeal from District Court, Boone Coun- the land contained approximately 95 acres; ty; R. M. Wright, Judge. Action to recover damages for shortage in acreage of a farm purchased by appellee from that plaintiff had told defendant that the tract contained approximately 95 acres, and that plaintiff was fully advised before he ac (186 N.W.) cepted the deed to the property the exact | mitted to the jury, in the court's instructions. acreage it contained, and accepted the deed (6) The defense that the farm was purchased with full knowledge of those facts, without as an entirety was not submitted or explainobjection, and executed a mortgage back to ed to the jury in the court's instructions. the defendant, as provided in the contract, for part of the purchase price, in which mortgage it was stated that the tract contained approximately 95 acres; that at all times before plaintiff agreed to purchase and did purchase said property he was aware as to the number of acres said tract contained, and that plaintiff was estopped from claiming that the farm contained a less number of acres. The second assignment, "that the verdict was excessive," we will discuss later. [1] Counsel's argument under his first assignment of error is quite exhaustive and able, but is not applicable to the case. Counsel assume the position that plaintiff's only remedy was to promptly rescind the contract after discovery of the fraud which he claimed was perpetrated upon him concerning the acreage of the land bought by him. Undoubtedly a vendee who has been induced to purchase by fraudulent representations has Replying, plaintiff averred with reference the option to either rescind the contract, or to the mortgage given by plaintiff to defend-affirm it and claim damages, to make the barant on the premises that he executed such gain what it would have been. had the repmortgage in accordance with the terms of resentations been true. Wicks v. Investment his contract; that the mortgage contained the Co., 150 Iowa, 112, 129 N. W. 744; Shuttlesame description as was contained in the field v. Neil, 163 Iowa, 470, 145 N. W. 1; deed received from the defendant, and in said Qualley v. Bank, 188 Iowa, 1212, 177 N. W. description the distances were given in part 539. only by chains and links, and this plaintiff did not know at said time the description of said land in said deed and mortgage covered less than 95 acres; that the description so given was insufficient to apprise the plaintiff of the acreage. Further replying, plaintiff averred that, even if he had known that the description in the mortgage and deed contained less than 95 acres, he at said time had no knowledge or information as to what part, if any, of the land included in said description was in the roads adjoining said premises, and at the time of the execution of said deed and mortgage the defendant again expressly stated to plaintiff that there were more than 95 acres inside of the fences, and that the premises contained 100 acres, including the roads. Under the issues thus joined the case was submitted to a jury, the court instructing that the burden was on the plaintiff to establish that the defendant represented to plaintiff that the land purchased contained 100 acres including the highways, and that the land inclosed within the fences contained between 94 and 95 acres, and the other matters necessary to make out the case based on fraudulent representations. The jury returned a verdict in favor of the plaintiff for $2,745, with interest from March 1, 1920, the date of the contract of the purchase of the land in controversy. [2] Appellant complains that his defense of estoppel was not submitted to the jury. True, the court did not subinit a defense styled "estoppel," but the questions involved, in the claimed estoppel were submitted, because the jury was required by specific instruction to find that the plaintiff had negatived or disapproved all matters set up in the plea of estoppel before it could find a verdict for the plaintiff. [3, 4] Appellant complains that his position that the farm was sold as an entirety was not submitted. Such position is not tenable. The case was submitted on the theory of the fraud claimed, and the plaintiff was required to prove every element of such claimed fraud, and the whole theory of the submission was that the sale was in gross. The authorities hold, so far as they refer to fraud, that where fraud is alleged and proven, there may be recovery notwithstanding the sale was in gross. Indeed, if the sale was by the acre, then fraud need not be proven to warrant recovery. Gardner v. Kiburz, 184 Iowa, 1268, 168 N. W. 814. No instructions were requested. No specific objections are made to the instructions given. Only the quite general criticism is made that defenses interposed by defendant were not properly explained and submitted to the jury which he have already discussed. However, we have examined the instructions, and conclude that the case was submitted with clearness and without error. Errors assigned, relied upon for reversal, are: (1) The verdict was contrary to law and the instructions of the court, and is not supported by the evidence. (2) The verdict is excessive. (3) The undisputed testimony was that appellee was informed, before he [5] We come now to consider the complaint completed the transaction, that there were that the verdict is excessive. Really this is less than 100 acres in the farm. (4) The un- the only assignment which is briefed and ardisputed testimony was that appellee knew gued in a manner to command our consideror should have known that the description ation. The land was measured by a surveycontained in the deed he accepted contained or at the time of the trial, and his measureless than 100 acres. (5) The defense of es- ment is undisputed. His measurement shows toppel was not defined or explained, or sub-that including the roads-there were roads Appeal from District Court, Polk County; James C. Hume, Judge. Action for divorce, which was granted to the plaintiff, together with an award for alimony. The defendant appeals from the award of alimony. Modified and affirmed. on three sides of the farm-there were 94.51 | 2. Divorce 263-Provision of decree making total amount of alimony due, and providacres, and that inside of the fences, excludIt is ing for issuance of execution, on default in ing the roads, there were 90.01 acres. monthly payments, held too drastic. manifest from the verdict that the jury found Divorce decree, allowing wife $30 per a shortage of 5.49 acres; that is, that the representation made by defendant was that month for herself and $15 per month for a child for a period of 20 years, held too drastic in there were 100 acres in the farm includ-providing that, on failure to pay the monthly ing the roads, and that the actual measure-payments the total amount should become due ment, showing 94.51 acres, would make a and payable at once, and that execution should shortage of 5.49 acres, which at $500 an acre issue therefor, and should be modified, so as to would produce the verdict. There was con- provide for execution for unpaid sum. Iflict in the evidence as to the statement made by the defendant concerning the acreage of the farm. We think it does appear by a preponderance of the evidence that the defendant represented to plaintiff that there were inside of the fences between 94 and 95 acres. In a more general way it was stated that it was a 100-acre farm, including the roads. We think it is fairly shown from the evidence that plaintiff was deceived in the number of acres inside of the fences to the extent that the acreage fell short of between 94 and 95 acres. It was shown conclusively that the farm, including the roads, contained 94.51 acres, and that is approximately what the evidence shows the defendant represented the acreage inside of the fences to be, which is 42 acres less than plaintiff represented the acreage inside of the fences to be, which, at $500 per acre, would be $2,250. claim was that he was buying the farm at the rate of $500 per acre. We think, to be in harmony with the mathematics of the case, the verdict should be only for $2,250, with interest thereon from March 1, 1920, and that the court should have reduced the verdict to that amount. Plaintiff's Miller, Kelly, Shuttleworth & Seeburger, of FAVILLE, J. The parties to this action were married in Des Moines on the 8th day of May, 1920, and lived together until the 29th day of January, 1921. At the time of the trial, the appellant was 29 years of age, and the appellee 20. One child, a boy, Edwin, was born to said parties. For a time after the marriage, the parties lived with the parents of the appellee, but beginning the fore part of December, 1920, they lived at the home of the parents of the appellant until the separation. I. The action was based upon the ground of cruel and inhuman treatment, which allegations were sufficiently sustained to warWe have carefully examined the record, rant the decree of divorce. The only quesand find no other error. If appellee, within tion raised on this appeal is in regard to the 15 days from the filing of this opinion, shall award of alimony. It appears from the recfile a remittitur reducing the verdict in acord that the appellant is employed as an ascordance with our finding, the judgment of sistant toll wire chief of the Northwestern the trial court, as so modified, will stand af- Bell Telephone Company. The appellee tesfirmed. Otherwise, the judgment of the tified that his average earnings were about court below will be reversed, and the case re- $135 per month. manded. Modified and affirmed. Upon the trial the appellant testified that he owned no property of any kind, besides his personal belongings; that he had no real STEVENS, C. J., and EVANS and FA- estate, nor any interest in any, and no perVILLE, JJ., concur. NELSON v. NELSON. (No. 34379.) (Supreme Court of Iowa. March 14, 1922.) 1. Divorce 240(5), 308-Alimony and allow. ance for child held not excessive. sonal property, except about $75 in the bank, and that he had no property at the time he married the appellee. He was corroborated in regard to this. It appears that his earnings varied, but were, as stated by the wife, on an average of approximately $135 per month. The decree, in respect to alimony, provided that judgment be entered against the appellant in favor of the appellee in the sum of Allowance of $15 per month for the sup- $3,600, payable $15 per month, for the care, port of a child, and $30 per month for the sup-keeping, and education of the child, until port of the wife for a period of 20 years, from said full sum of $3,600 had been paid, and husband with average income of $135 per further awarded permanent alimony in favor of the appellee in the sum of $7,200, to month, held not excessive. (186 N.W.) said: be paid at the rate of $30 per month until have judgment for the full sum due. We the full amount had been fully paid. The decree then provided as follows: "It is further ordered and decreed that the costs of this suit be taxed to the defendant, and that upon defendant's failure to pay any of the amounts of said judgments, attorney's fees, and costs, that execution issue therefor, and the entire amount thereof." "Nor can we now conceive any sufficient justification for decreeing that a failure to pay any monthly installment of alimony shall expose the defendant to the recovery of a judgment against him for $7,800. This provision is too manifestly unreasonable to leave room for argument in its support and it cannot be permitted to stand." In Spain v. Spain, 177 Iowa, 249, 158 N. W. 529, L. R. A. 1917D, 319, Ann. Cas. 1918E, 1225, we had under consideration a decree in divorce case which provided: "But, should any of said monthly payments not be made promptly as provided herein, then 000, or any sum remaining due and unpaid, less execution shall issue for the full sum of $2,whatever monthly payments have been made." Referring to said provision, we said: "This could not be sustained in any event, because it was too drastie in character." In Kell v. Kell, 179 Iowa, 647, 161 N. W. 634, the decree provided for monthly payments, and that “in default of any such payments the entire sum remaining unpaid shall become due and payable." We held that this provision was without justification, and that it could not be upheld. It will be noticed that, by the terms of said decree, the failure on the part of the appellant from any cause whatsoever to pay any of the monthly payments due under the decree shall cause the entire amount of said alimony, to wit; $10,800, to be due at once, and that execution could issue therefor. The effect of the decree is to provide for the payment by the appellant of monthly allowances of $45 per month, for the support of both the wife and child, for a period of 240 months, or 20 years. In view of the age of the parties and the earning capacity of the husband, we do not think that this allowance in monthly payments was excessive or unrea sonable. The division of the earnings of the husband under this apportionment would leave him substantially the larger portion of his monthly salary for his own maintenance and support. An award of alimony must have regard both to the necessities of the wife and the ability of the husband to pay. [2] The decree in the instant case, pro[1] Under all of the circumstances dis-viding that, upon failure to pay any of the closed in the record we do not think an monthly payments, the total amount shall award of $15 per month for the support of the child for a period of 20 years, and of $30 for the support of the wife for a like period, to be made in monthly payments, was excessive or unreasonable. Our statute, permitting modifications of decrees awarding alimony, affords opportunity for a change in the terms of such decree in the future, if the conditions of the parties should so substantially change as to render such a modification just and proper. The decree as to the amount awarded meets with our approval and will be affirmed. be due and payable at once, and that execution shall issue therefor, was too drastic to meet with our approval. The decree will be modified, so as to require the appellant to pay to the appellee, or to the clerk of the district court of Polk county, Iowa, on or before the 1st day of each month, $15 for the care, keeping, and education of said minor child, Edwin Nelson, and $30 per month as alimony for the appellee, said payments to be continued for the period of 240 months, or until modified by order of court, and upon the omission to pay such sums as required execution shall issue, upon appellee's request, for all sums not paid as required by said decree. As the costs of this branch of the case are but nominal, all costs will be taxed to appellant. Kell v. Kell, supra. II. Appellant, however, insists that that portion of the decree which provides that, upon failure to pay any of the monthly installments of alimony, execution should issue for the entire amount, is inequitable and unreasonable, and should not be permitted to stand. In Schlarb v. Schlarb, 168 Iowa, 364, 150 N. W. 593, we had before us a decree which awarded alimony to be paid in month-firmed. ly installments, and provided that upon default in the payment of any one of the Subject to the foregoing modification, the decree appealed from is modified and af STEVENS, C. J., and EVANS and AR monthly installments the plaintiff should THUR, JJ., concur. JOHNSON et al. v. FORD. (No. 34433.) (Supreme Court of Iowa. March 14, 1922.) Exchange of property 8(4)-Evidence insufficient to show false representation as to area of lots conveyed plaintiffs. In an action to rescind a land exchange contract, evidence held insufficient to show false representation as to the area of lots conveyed to plaintiffs. thereon. The stakes carried tags showing the actual dimensions of each lot. The lots, however, were not separated in use, but together constituted one irregular shaped tract. That is to say it was not rectangular, and carried no suggestion of being an aliquot part of a government description. If an actual measurement should show it to contain exactly 10 acres, it would be the result of a coincidence, and not the result of any intentional carving from a larger think the evidence fairly shows that the area of that exact number of acres. tract had long been referred to by Ford and Suit in equity to rescind a contract of by real estate men as a 10-acre tract, and exchange of real properties. There was a that perhaps the plaintiff regarded it as trial upon the merits, and a decree dismiss-such at the times he previously saw it in ing plaintiffs' petition. They appeal. Af- 1913 and 1916. The plaintiffs and their witfirmed. nesses, however, testified that during the ne Appeal from District Court, Polk County; James C. Hume, Judge. We John E. Holmes, of Des Moines, for appel-gotiations for the present trade Ford exlants. pressly represented the area to be 10 acres. Fred L. Groesbeck, of Des Moines, for ap- This is not only denied by Ford and by his pellee. witnesses, but it appears also from their testimony that Ford expressly stated to the EVANS, J. Plaintiffs are husband and plaintiff that it contained less than 10 acres. wife. On September 2, 1919, they entered If the evidence rested in this approximate into a contract of exchange with the defend-equilibrium, we should find it quite difficult ant, Ford, whereby they agreed to convey to say where the preponderance of it fell. to Ford a certain residence property in the One of the plaintiff's witnesses was Lindcity of Des Moines, known in the record as bloom. He testified that the plaintiff listed lot 62 and whereby Ford agreed to convey with him for sale the residence lot No. 62. to them a certain tract of land near the Pursuant to such listing, he found Ford as town of Altoona. This tract, though not in- a proposed purchaser, provided he could efcluded within any town, was platted into fect an exchange of his Altoona property; three lots known as lots 23, 24, and 31. Lot that Ford told him that the area of such 62 was turned into the trade at a valuation tract was 10 acres and that he (Lindbloom) of $4,000, and lots 23, 24, and 31 were turn- conveyed the same information to the plained in at a valuation of $6,000. Deeds were tiff. On cross-examination, however, he adexecuted pursuant to such contract, and pos-mitted that upon the first trip of inspection session taken thereunder by the respective of the Altoona property made by the plainparties. In December, 1920, the plaintiffs tiff, both the witness and Ford were present, brought this action to rescind. It is predi- and that Ford at that time did state, both cated upon alleged false representations as to the witness and to Johnson, that the tract to the area of the lots conveyed to them. It did not contain 10 acres. This evidence gives is averred in the petition that the defendant very significant corroboration to the testifalsely represented the area of the Altoona mony on behalf of the defendant. It is true property to be 10 acres, whereas it was in that the plaintiff denies Lindbloom was his fact only about 6.29 acres. The defendant agent in the examination of this property. denies that he ever made the alleged repre- and denies perhaps that he had ever listed sentations, and this denial makes the one is- lot 62 with him; but it is undeniable that sue in the case. It is wholly a fact issue. Lindbloom was his witness upon the trial, The witnesses are quite equally divided in and that the plaintiff proved by him as such number as between the parties. It appears that the plaintiff did list with him two resifrom the undisputed evidence that the ac-dence properties, one of which was lot 62, tual area of the tract is 8.04 acres. This and that it was pursuant to such listing that properly included highways. Excluding the the negotiations were had concerning the highways, the area is substantially as claim- Altoona tract. The plaintiff did pay to Linded by the plaintiff. The business for the bloom a commission of $100. It is to be conplaintiffs was transacted by the husband, ceded that this was done upon the insistence Joseph Johnson. He had some acquaintance of Ford, who refused to be deemed liable with the Altoona tract. He had been upon for any commission. This was not an imthe same in 1913, and again in 1916, with proper precaution upon Ford's part. Being a view to purchasing. At the time of the lat- | done openly, it carries no suggestion of anyter visit the property was already platted thing ulterior or sinister. So far as appears into three lots, and the stakes were set in this record, Lindbloom was disinterested |