#### King v. Williams.

1. Contract: fraud: peculiar knowledge of one party: evidence. Plaintiff assigned to defendant a contract for the purchase of land, which he knew had been forfeited. Defendant, failing to get the land, had a settlement with plaintiff, wherein plaintiff gave defendant his promissory note. Plaintiff now seeks to recover cf defendant on the ground that defendant deceived him by false statements as to what it would be necessary to pay to secure the land and avoid the forfeiture; and that defendant was possessed of knowledge in the matter not possessed by him. *Held*that plaintiff’s knowledge of the forfeiture was a complete answer to all his allegations of fraud, and that he could not recover.

*Appeal from Page District Court.*

Saturday, March 5.

The plaintiff seeks by this action to recover of the defendant a certain sura of money, of which he claims he was defrauded in a settlement made between the parties, growing out of the assignment of certain land contracts by the plaintiff' to the defendant. The defendant set up a counter-claim, which consisted of a promissory note executed by plaintiff to defendant. At the conclusion of the introduction of the evidence, the court, on its own motion, instructed the jury that the plaintiff had failed to make a case against the defendant, and the jury were directed to return a verdict for the defendant for the amount of the note set up in the counter-claim. A verdict was returned in accord with the instruction, and a judgment was rendered thereon. Plaintiff appeals.

*K. A. Pence*and *James McCabe,*for appellant.

*Stockton*c& *Keenan,*for appellee.

Rothrock, J.

It is claimed by the appellant in his petition that the settlement in question was procured by duress and fraud upon the part' of the defendant. We detei’mined in a former appeal that there was no duress in the trans*75action. (See 65 Iowa.) In the present appeal plaintiff appears to have abandoned his claim to recover on the ground of duress; but he still insists that he has a right of action against the defendant for fraud. The facts which made a settlement necessary between the parties are as follows: The jdaintiff held two contracts for the purchase of land from the Burlington & Missouri River Railroad Company in Nebraska. They were long-time contracts, and they required annual payments of interest, and small amounts of principal. They were liable to forfeiture for non-payment of principal and interest according to their terms. It is not disputed by the parties hereto that the railroad company had the right to declare an absolute forfeiture of the contracts for any failure of the purchaser to make payments as they became due. The plaintiff had paid up nearly all that was owing on one of the contracts, but, upon the other, he had paid but a small amount, and he was in default thereon-He had purchased a farm from the defendant, and was indebted to him therefor. A contract was made between the parties, by which the plaintiff assigned the land contracts to the defendant for about $825. This amount extinguished the debt on the farm which plaintiff bought of defendant, and left a balance due the plaintiff of about $178, for which the defendant gave plaintiff his promissory note. This was on the seventh day of July, 1882. The defendant, was to make all the payments yet to be made on the land, including all overdue payments. The plaintiff claims that the defendant agreed to make payment in three days after the assignment of the contract was made. The proof shows that an attempt to pay would have been unavailing, because the contract upon which this payment was due had been forfeited long before the assignment. The settlement ox which complaint is made was concluded in September fol lowing the assignment of the contracts.

The plaintiff claims that the defendant deceived him by false statements as to what it would be necessary to pay to *76the railroad company to secure tlie land, and avoid the forfeiture; that lie was possessed of knowledge in the matter not possessed by tbe plaintiff. It appears to us that the fact tliat plaintiff knew that tbe contract bad been forfeited when lie made the settlement is a complete answer to all his allegations of fraud. lie not only knew the contract had been forfeited at that time, but it was in fact forfeited long before he assigned it to tlie defendant, and lie had good reason to believe that it was forfeited when lie made tlie assignment. He bad been advised in March, 1882, that, unless payment was made by April 10, 1882, tlie contract would be forfeited, and tbe land restored to market, and the forfeiture was actually made oil tbe twenty-fifth day of April, 1882. These facts, and the terms upon which the land could again be purchased from tbe company, were as accessible to tlie plaintiff as they were to the defendant.

Without further elaboration, we may say that it is very clear that the evidence failed to show that the plaintiff was a victim of fraud, and we think the court did not err in directing a verdict for the defendant.

Affirmed.