56 W. Va. 51 | W. Va. | 1904
William W. Cork and wife, by executory contract, sold to ■James E. Cook “all that certain vein or stratum of coal, known as the Pittsburg vein, now being operated by the parties of the first, underlying a certain tract and parcel of land containing about sixty-five acres, be the same more or less/’ in Harrison -county, in consideration of $25,200. Under this contract a
If the case depended on the written contract preliminary to "the deed, it would seem to be more clearly for the plaintiffs, •because the representation as to quantity in that contract applies to the quantity of the tract of land, not to the quantity of ■coal in it, whereas, the statement of quantity in the deed refers more to the quantity of coal. It seems clear from the oral evidence that the intention was not to depart from the contract in the drafting of the deed, but that the variance was only the ■scrivener’s. The contract aids this oral evidence, as presumably the contract expressed what the parties designed. As the deed merged the contract, until the deed be reformed by decree, we must go by it.
How stands the case going by the deed ? It conveys “all that ■certain vein or stratum of coal known as the Pittsburg vein of coal said to be about sixty-five acres within” a certain tract. Here is no warranty or assurance of quantity; no absolute or unqualified statement of quantity, but one qualified by the words “said to be about sixty-five acres.” It would be difficult to indicate more plainly, in few words, an intent to qualify the statement of quantity, to convey to the mind an understanding that it was not designed to guarantee a given quantity, but only to .approximate it. In Crislip v. Cain, 19 W. Va. 438, 546, it is laid down as law:
“If by a written contract a vendor agrees to sell or by a deed conveys a certain tract of land, stating its boundaries as containing a specified number of acres, more or less, or as contain*54 ing about a specified number of acres, or as containing by estimation a certain number of acres, or as containing, it is supposed or it is said, a specified number of acres, or any other mode of designating the quantity, which shows, that the exact quantity was unknown, such a contract is clearly a sale in gross without warranty of the quantity;, and if there be a-deficiency in this estimated number of acres, unless there be fraud on the part of the vendor in the statement, that the number of acres was really estimated to be the quantity named, the vendee is not entitled to any abatement from the purchase-money because of such deficiency; nor would the vendor in such case be entitled to any additional compensation, should it turn out, that there was a surplus- over the number of acres named/-’
írWhere a contract or deed is a sale in gross of a tract of land, and the number of acres in the tract stated to be bjr estimation or by supposition, or to be between a specified number of acres and another specified number of acres, or in any other manner, as to show, that the vendor does not profess to know the number of acres in the tract, such statements must be regarded as representations of the quantity of the land made by the vendor not upon his own personal knowledge; and in order to establish a fraud by him, so as to make him responsible for a defici-cieney in the estimated quantity, it must be shown, that the vendee relied on such representations, was thereby induced to purchase at the price, which he paid 'or agreed to pay, and that the vendor either did not believe his representation to be true, or had no knowledge or information on the subject.” (The syllabus points do not exactly correspond with these points).
' Under the law thus stated, the deed in this case is a sale in gross, and contains on its face no representation of exact quantity, no warranty of quantity, and from the face of the deed there is no defense of this case. The question, then, is, can the defendants have relief because the plaintiffs practiced actual fraud upon them? Fraud is the defendant’s plea, and they bear the burden of proving it by clear preponderance of proof. Eote, that this deed is not one conveying a tract containing a specific quantity for a specific sum with the statement that it is at a specific price per acre. If it were, it would be a sale by the acre, and material deficiency would have to be accounted for in any event, without regard to fraud of any cast. Ear i®
The burden is on the vendee; but in doing so he can prove any antecedent declarations or action of the vendor to establish his fraudulent intent. But, under general principles touching fraudulent conduct in contracting, if the vendee know the quantity, if he know that the vendor is falsely misrepresenting quantity, he can get no relief, because the fraud of the vendor has not misled him. Shoemaker v. Cake, 83 Va. 1. Applying these principles to this case: The defendants state under oath that Dorsey Cork repeatedly during the whole negotiation and on the day of the execution of the deed, stated, in various ways, that there was the quantity of sixty-five acres of coal. They do not say that the grantors said so. They were living five miles from Clarksburg, where the transaction took place, and it was negotiated alone by their son, Dorsey W. Cork, they simply executing the deed when presented to them. There is no evidence strongly supporting the version of the defense. V. W.‘ Scott, who acted as Cook’s attorney in examination of title and was present the night the deed was made, is very indefinite, and intends us to understand that he
Three witnesses, Cork, Law and Scott say that the intent was ‘to draw the deed to conform to the antecedent contract. How, •clearly the contract made no warranty of quantity, because it ■sol'd the coal “underlying a certain tract or parcel of land con-taining about sixty-five acres;” the word “containing” applies vfco its ¡next preceding word “land,” stating the land, not the
Again, why did not the defense take O’Neill’s deposition? We may infer that he would not support their theory.
In order that Cook and Hart get relief for the fraudulent representation, granting it proven, it must appear that they relied upon the representation and were by it misled and induced to purchase. If it did not mislead, the fraud is without effect and abortive. Point 6, Crislip v. Cain, 19 W. Va. 438; Wamsley v. Currence, 25 Id. 543; Shoemaker v. Cake, 83 Va. 1; Bettman v. Harness, 44 W. Va. 434. “The real inquiry is, not whether the vendor knew the representation to be false, but whether the purchaser believed it to be true and was misled by it into the contract.” Linhart v. Foreman, 77 Va. 540. “The-allegation of misrepresentation may be met by proof that the party complaining was well aware and cognizant of the real facts of the case/ but the proof of knowledge must be clear and conclusive.” Kerr on Fraud, .78. I will not assert that if the-complaining party simply have equal means to ascertain, he must make inquiry; for where a representation has been made, especially a known false one, it lies not in the mouth of the maker to say to the other that he should have made inquiry for himself, because he had right to rely on the representation. Kerr 79, 80; Hull v. Field, 76 Va. 607; Wilson v. Carpenter, 91 Va. 183. But I say that where the buyer ‘liad knowledge of facts which showed the representation to be untrue, or that he expressly stated in terms, or showed by his conduct, that he did not rely upon the representation, but acted on his own judgment,” his plea of misrepresentation is unavailing. Wilson v. Carpenter, 91 Va. 183. And though he is not bound to make inquiry, yet if he does take steps to inquire, so we can say he did not rely on the representation, but on his own means to find out, his plea is abortive. Grim v. Byrd, 32 Grat. 293. Now, the evidence shows preponderantly that at' the very time of the preparation of the deed Cook stated that he knew what he was getting as to the area of coal. This is-confirmed by the fact that after the agreement of purchase, 7th November, Cook directed Brady & Bros., mining engineers in his employ, to make a survey of this coal and give its quantity, and on the 8th November A. Spates Brady did survey it and,'
We know that the result of the survey -was telephoned to Rair-mont the night before. Was it to a stranger? And Cook and Hart admit that they were at Brady’s office that evening, and got a plat of another survey of a little piece of surface bought of Cork out of the tract, which went into the deed. Are we to think they would fail to make inquiry at that office, if they had not already the information of the survey ? Highly improbable. In addition, Cook had twice before made personal inspection of this tract of coal in company with C. A. Horner, who very shortly before was trying, as agent of Cork, to sell this coal, and, as Cork says, Cook told him that that inspection gave him knowledge of the quantity of coal that was satisfactory to him. In addition, he admits that Horner told him that the tract contained but forty acres of coal, and if he bought it for more, he-would be fooled. Cook appeals to a letter to him from Horner as showing just what Horner said, and contends that it does not say this; but in the letter on file Horner states that the-tract was “estimated to be sixty acres coal.” This is no positive statement, but a warning. But he admits that Horner-told him on the 7th November that the tract had only forty'
We conclude that the defense fails to establish false or fraudulent representation; and hence it is needless to say, but we do •say, that if there were such representation, defendants did not rely upon it, were not induced to contract thereby, but acted on -information of their own and on their own knowledge. This ■ coal was very valuable, as the tract came down to the railroad, ■was an established coal plant with side track and tipple, and •was the key to valuable coal land behind it, cut off from the railroad, which land Cook intended to buy, and he wished this tract, was eager to buy it and took the risk, or knew the -quantity.
We must affirm the decree.
Affirmed.