117 Va. 467 | Va. | 1915
delivered the opinion of the court.
This suit in equity was brought by F. S. Tolson against Peter B. and Robert S. Bradley to recover compensation for a deficiency in acreage upon a purchase of land. The bill
The appellants were the owners of a farm in Culpeper county lying on both sides of a certain county road. They had owned this farm for a number of years but resided in Boston and had never seen the farm and had no accurate knowledge as to its acreage or how it was divided by the road. On July 4, 1907, one G. S. P. Triplett, who seems to have been renting or looking after the land for the Bradleys and who was thoroughly familiar with it, and who knew also that they wanted to sell it, entered into a written agreement with Tolson, which read as follows:
“I have this day agreed to sell as agent for Peter B. & Robert S. Bradley, of Boston, Mass., to F. S. Tolson, of Culpeper county, Virginia, that portion of their Greenfield farm that contains the buildings on the right hand side of the road from Ball’s X Roads leading to Freeman’s Ford on the Rappahannock river—supposed to contain 360 acres —for the sum of $5,250, payable on time as follows: Two thousand dollars cash on August 15, 1907, and five annual payments as follows—$650, each payable September 15, 1908-1909-1910-1911 and 1912, or five thousand dollars cash, the rate of interest to be 5% per annum, the deferred payments to be secured by deed of trust.
“The land to be surveyed and if it should fall short of 360 acres then a reduction will be made at the price, paid per acre for the 360 acres. As witness our signatures'this 4th day of July, 1907.
“PETER B. BRADLEY & ROBERT S. BRADLEY, (Signed) per G. S. P. Triplett, Agt. (Signed) F. S. TOLSON.”
Early in 1910 Tolson sold a part of this land to raise some of the money due the Bradleys, and upon a survey then made to lay off the portion sold it was discovered that the boundary contained 295 instead of 360 acres. Thereupon, under date of February 4, 1910, Tolson wrote Peter B. Bradley telling him of the discovery and using this language: “However, not meaning to back down from my agreement but owing to the misrepresentation in the place by Mr. Triplett, I as well as yourself was led to understand the place conveyed to me contained somewhere near 360 acres, but upon surveying I find a shortage of 65
It is conceded on behalf of the appellee that upon the face of the conveyance his contract for the purchase was one of hazard, and that he would have no right upon that showing to any relief. Nor, as we understand his contention, does it rest upon anything that passed between him and Peter B. Bradley at the meeting in New York, or at any other time. His claim for relief is based solely upon certain representations alleged to have been made to him by Triplett, which he says he relied upon and was thereby defrauded. He claims that after the contract of July U, 1907, was entered into, Triplett advised him not to have the land surveyed, stating that he had lived on it, cultivated it, knew it, and that Tolson would lose land by the survey and would have to pay the cost of the survey also. He further claims that, although he relied upon these representations, he did not know until after he had settled in full for the land that Triplett at the time he made them knew them to be false. It appears that after Tolson’s purchase Triplett obtained a deed to his daughter for the balance of the farm, and subsequently stated to a witness that he knew all the time that the land was short on the right
Tolson’s contention, therefore, is that although neither he nor Bradley knew the acreage Triplett did know it, that under the influence of Triplett’s representations he entered into the contract, and that the Bradleys, having benefited by a contract which Triplett made for them, were bound by the fraud which he perpetrated, although they themselves may have been innocent of it.
The Bradleys, on the other hand, contend that Triplett’s connection with the sale, in so far as they are chargeable with it, ended with the contract of July 4, 1907, which expressly provided for a reduction in the price if the estimated quantity should fall short; that Tolson, not content to rely entirely upon Triplett’s agency, and not altogether confident of his authority, took the matter up directly with them and obtained a confirmation of the contract, and thereafter, finding himself unable to meet its alternative terms of payment, either in cash or on time, secured a second contract on his own initiative, of which he now unjustly complains. And they further contend that, even if they could be held responsible for Triplett’s misrepresentations, Tolson, by his letter of February 4, 1910, and his subsequent conduct waived any possible right to take advantage of the alleged fraud.
In our opinion the latter contention is conclusive of the controversy, and renders it wholly unnecessary to discuss any other aspect of the case.
It appears to be conceded by counsel for Tolson that the letter in question followed by the payment of the balance of the purchase money, as above set out, would ordinarily constitute an effectual bar to his suit, but it is sought to avoid this result by the claim that at the time the letter was written he did not know the “misrepresentation” had been made by Triplett with knowledge that it was untrue. The
The letter of February 4, 1910, was written by Tolson after he knew all the facts of which he now complains, except the alleged actual scienter and fraudulent intent on the part of Triplett. This was, at most, merely a newly discovered incident or feature of the alleged fraud, sufficient to change in degree the moral aspect of the case, but not to create any new right. Wilson v. Hundley, 96 Va. 96, 102, 30 S. E. 492, 70 Am. St. Rep. 837. His right to disaffirm the contract was no better when he brought this suit than it was on February 4, 1910. By the letter in question he distinctly affirmed it, waived any legal claim to relief on account of Triplett’s “misrepresentation,” submitted the matter of a reduction of the purchase money to the appellants, and, upon their refusal to make “any
We are of opinion that the decree appealed from should be reversed and annulled, the attachment in the cause abated and the bill dismissed. A decree to this effect will be entered by this court.
Reversed.