Cabot v. Christie

42 Vt. 121 | Vt. | 1869

The opinion of the court was delivered by

Steele, J.

I. The plaintiff can not recover upon the ground of a parol warranty of the quantity of the land. If the quantity was warranted it should be provable by the deed. It is true that a deed of conveyance need not contain all the stipulations of the parties. For example, the agreements as to consideration and mode of payment-need not be embraced in the deed, for the instrument purports to be the deed of but one of the parties. But it does purport to contain the covenants of the grantor with respect to the property conveyed. To- add a new covenant by parol proof would be a. palpable violation of the familiar rule that written contracts are not to be varied by oral testimony. Such a parol stipulation, it has been held, could not be proved in respect to an ordinary bill of sale of personal property.

Nor is the plaintiff entitled to recover in this action upon the ground of 'mistake. A mutual and material mistake, by which the purchaser was misled as to the quantity of land, would be a more appropriate ground for relief in a court of chancery than in a court of law.

If, tjhcn, the plaintiff was entitled to recover at all in this case, it was by reason of some fraud on the part of the defendant by -.vhiot{ the bargain was induced.

' II. The plaintiff complains of the ruling of the county court upon the subject of fraud. It is conceded that the quantity of larid was represented incorrectly. The court properly told the jiiry that this, in itself, would not amount to fraud. To entitle the plaintiff to a recovery upon that ground, the defendant'must have made some representation upon the subject that he did not believe to be true. The plaintiff claims, and his evidence tended to prove, that the defendant did make such a representation by stating the quantity of land as a matter within his own knowledge, when, in fact, as the defendant concedes, it was a matter upon which he had only a belief. We think it very clear that a party may be guilty of fraud by stating his belief as knowledge. Upon a statement of the defendant’s mere belief, judgment, or information, the plaintiff might have regarded it prudent to procure a measurement of the land before completing his purchase. ’ A statement, as of knowledge, if believed, would make a survey or dneasurement seem unnecessary. A representation of a fact, as of the party's own knowledge, if it prove false, is, unless explained, inferred to be wilfully false and made with an intent to deceive, at least in respect to the knowledge which is professed. A suffieient explanation however sometimes avises from the nature of the subject itself, or from the situation of the parties being such that the statement of knowledge could only be understood as an expression of strong belief or opinion. But the quantity of land in a farm is a matter upon which accurate or approximately accurate knowledge is not at all impossible or unusual. If the defendant had only a belief or opinion as to the quantity of, land, it was an imposition upon the plaintiff to pass off such belief as. knowledge. So, too, if he made an absolute representation as to\the quantity, which was understood and intended to be understood as a statement upon knowledge, it is precisely the same as if \he had distinctly and in terms professed to have knowledge as tp the fact. It is often said that a representation is not fraudulent if l.the party who makes it believes it' to be true. But a party who is aware that he has only an opinion how a fact is, and represents that opinion as. knowledge, does not believe his representation! to be true. As is well said in a note to the report of the case of Taylor v. Ashton, 11 Mees. & Wels., 418, (Phila. Ed.), the belief'bf a party to be an excuse for a false representation must be “ a {belief in the representation as made. The scienter will, therefore, be sufficiently established by showing that the assertion was mayle as of the defendant’s own knowledge, and not as mere matter of opinion with regard to facts of which he was aware that he had no such knowledge.” The same principle of law has been repeatedly recognized. Hammatt v. Emerson, 27 Maine, 308, 326; Bennett v. Judson, 21 N. Y., 238 ; Stone v. Denny, 4 Met., 151; Hazard v. Irwin, 18 Pick., 95.

In the case before us, the plaintiff, under the charge of the court, was denied the benefit of this rule of law, although there was evidence tending to show every necessary element of a fraud of the nature we have been considering. The plaintiff’s request was refused, and the jury were instructed that the plaintiff could only recover in case they found “ that the defendant represented the quantity of land different from what he knew or believed to be true.” Under these instructions it would be immaterial whether he made the representation as a matter of knowledge or as a matter of opinion so long as he kept within his belief as to the quantity of land. In this we think there was error. The court properly instructed thé jury that the representation, to warrant a recovery, must have been relied on and have been an inducement to the purchase. The subsequent remark, that the jury, to hold the defendant, must find that the plaintiff would not have made the purchase but for the representation, we regard as probably inadvertent.

What the plaintiff would have done but for the false representation, is often a mere speculative enquiry, and is not the test of the plaintiff’s right. If the false representations were material and relied upon, and were intended to operate and did operate as one of the inducements to the trade, it is not necessary to enquire whether the plaintiff would or would not have made the purchase without this inducement.

The judgment of the county court is reversed and the cause is remanded<