Foster v. Kennedy's Adm'r, 38 Ala. 359

Foster v. Kennedy's Adm'r

38 Ala. 359 | Ala. | 1862

A. J. WALKER, C. J.

1. The evidence of Clifton tended to show, that the defendant misrepresented the location of the lines oí the land, and did so knowingly; and it requires no argument to prove that his evidence was admissible. But, under the averments of the complaint, the evidence of the witness Berryhill was not admissible. The alleged misrepresentation was, that the mill-pond and mill were on the south-west quarter of the north-west quarter of section five, township twenty, range ten; and Berryhill was allowed to testify, that if the entire pond had been included in the tract represented in the diagram, which was the east half (or the south-east and north-east quarters) of the south-east quarter of section six, in the same township and range, the land would have been worth more by three hundred dollars. The measure of damages for the falsity of the alleged representation, was the diminution of the value in consequence of the mill and pond not being on the *363land on which it was represented to be. The inquiry must be as to the injury resulting from the fact that the representation was false. — Gibson v. Marquis, 89 Ala. 668 ; Stow v. Bozeman, ib. 397; Ward v. Reynolds, 32 Ala. 384. A comparison is to be made, between the actual value, and the value upon the supposition of a correspondence with the representation. The. comparison which the witness was permitted to make, was between the actual value, and the value upon the supposition of the pond heing upon ■one piece of land, when- the representation alleged was that it was upon another tract. The testimony was, therefore, not admissible under "the copiplaiut, and the court ¡erred in admitting it.

[2-3.] There was no error ¡in the -refusal of -the charges y-asked by the -defendant. ’ Neither a knowledge of the falsity • -of a representation, nor/the presence of circumstances ■ manifesting a recklessness of truth, is an indispensable in-, gredient of a fraud, "A misfepresentation by the vendor of laud, in regard to a'-material fact, which operated as an inducement to the purchase, upon which the vendee had- a right to rely, and by which he was actually deceived and injured, is a fraud.” — Foster v. Gressett, 29 Ala. 393; Blackman v. Johnson, 35 Ala. 252 ; Kelly v. Allen. 34 Ala. 663. The law does not pronounce representations as to the boundaries of land, or as to the qualities of rhachinery, to be expressions of opinion. They may be either statements of facts, or statements of opinion; and it is for the jury to decide whether they are one or the other.

The declarations of the defendant made to John A. II. Kennedy, the husband of the plaintiff’s intestate, before the purchase, will probably hereafter be offered in connection with other facts, not stated in the bill of exceptions to have attended their offer on the previous trial. We therefore do not dee mit necessary to pass upon the admissibility of such evidence in this case. Besides, the question of admissibility may, perhaps, be changed by an amendment of the complaint.

Reversed and remanded.