53 S.E. 307 | N.C. | 1906
Plaintiffs alleged that on 1 November, 1899, they made a parol agreement with defendant company to sell to it all of the timber on their land measuring twelve inches at the stump when cut, except the long leaf pine, which was expressly reserved. Defendant's agent, with whom the agreement was made, proposed that he would prepare the deed, to which plaintiffs assented. Thereafter said agent presented to them for execution, a deed which he stated was drawn in accordance with said agreement. Plaintiffs were unable to read the deed and requested the said agent to do so. After reading a few lines he said that he did not have time to read the remainder, but assured plaintiff that it was drawn in accordance with their agreement and that the long leaf pine was reserved. Relying upon said representation, plaintiffs executed the deed. Plaintiffs thereafter learned the long leaf pine timber was not reserved from the operation of the said deed; that the representation made by defendant's agent that said timber was reserved was false and fraudulent. That thereafter the defendant sold and conveyed the said timber, including the long leaf pine, to the Dennis Simmons Lumber Company for value and without notice of the fraud which had been practiced upon plaintiffs. That by reason of the conveyance of said timber to said lumber company, plaintiffs have no remedy against said purchaser to have correction of said deed. That the value of the (516) long leaf pine timber was $221. Defendant denied the material allegations, admitting the sale to the Dennis Simmons Lumber Co. It was conceded that no portion of the timber was cut from the land when the summons in this action was issued. His Honor permitted the plaintiffs to amend their complaint by alleging that the timber had been cut since the date of the summons. Defendant excepted. The court submitted issues directed to the inquiry whether there was an agreement that the long leaf pine was reserved; whether the plaintiffs were induced to execute the deed by the false and fraudulent representations of the defendant's agent and the value of the long leaf pine timber. The jury responded to the issues affirmatively and fixed the value of the timber at $221. *385
Judgment was signed for plaintiffs, to which defendant excepted and appealed.
The record discloses a number of exceptions. The substantial merits of the controversy group themselves around three questions, all of which are properly raised upon the record and argued by counsel, orally and in his, well considered brief. At the close of the entire evidence, defendant demurred and moved for judgment as of nonsuit pursuant to the statute. The first cause of demurrer is: "Because no entry had been made by defendant or the Dennis Simmons Lumber Company and no timber had been cut by either, nor by anyone under their authority when the action was brought." Defendant maintains that no action can be maintained for injury to real estate, unless prior to the date of the writ, a trespass has been committed. This is undoubtedly true and if plaintiffs' action was for trespass, his Honor would have granted the motion for judgment of nonsuit. The plaintiffs' cause of action is for deceit, in that they have sustained an (517) actionable wrong by false and fraudulent representation of defendant's agent. The motion to nonsuit being founded upon the admission that the transaction is correctly stated in the complaint as testified to by plaintiffs, we may examine the proposition maintained by defendant from that point of view. The parties made a contract for the sale of certain timber, reserving a well defined class of trees. Defendant's agent undertook to reduce the contract to writing, in accordance with its terms. He knowingly included the timber which was reserved and falsely represented to plaintiffs that said timber was reserved in the deed. By means of this false representation, he procured the execution of the deed. It would seem clear, both upon reason and authority, that by this conduct a right of action accrued to plaintiffs. If the matter had remained in this condition plaintiff could have brought an action in the nature of a bill in equity for correction of the deed or sued, as in trespass on the case, for deceit. Pasley v. Freeman,
While we think that the conduct of defendant's agent when requested to read the deed was well calculated to mislead the plaintiffs and reasonably induce them to accept his positive assertion that the deed was drawn in accordance with the agreement, we note that recent decisions and text writers show a strong tendency to hold that the defense of negligence on the part of the plaintiff is not open to the defendant when sued for his positive fraud. Jaggard says: "The law recognizes, in many circumstances, the right of a man to rely upon the statements of another. * * * There is indeed a strong *389
inclination on the part of courts to hold, without any qualification, that a person guilty of a fraudulent misrepresentation can not escape the effects of his fault on the ground of the injured party's intelligence." 1 Torts, 595. The Supreme Court of Illinois, in Linnington v. Strong,
Affirmed.
Cited: Modlin v. R. R.,
(524)