156 Pa. 156 | Pa. | 1893
Opinion by
On May 11, 1886, the appellant being the owner of seven tracts of timber land* containing about 2,800 acres, entered into an agreement with the appellee for their sale for the sum of $10,900. Before this agreement was made, the agents of the appellee with the agent of the appellant visited the lands on several occasions for the purpose of examining them with a view to their purchase for the prop timber upon them. The result of these examinations was this agreement for their purchase. On June 4, 1886, a meeting took place at Lock Haven for the purpose of consummating the sale by the execution of the deed
There was no warranty as to the amount of timber on these tracts made on that day, and none prior thereto. Appellee’s agents were looking for prop timber and met Marsh, who said to them that he had these lands belonging to appellant for sale. He went with them in April, 1886, upon an adjoining tract, and pointed them out to them. He said: “ Here is a nice lot of prop timber upon James W., Charles McMackin, and George tract.” “All you see there is prop timber, yellow and jack pine.” A week later these agents, with an expert, J. R. Thorn, went with Marsh to visit them for the purpose of further examination. Marsh again pointed out the lines and said: “ There was a nice lot of prop timber on them tracts. That was all yellow and jack timber, that we could see from the front.” Shortly after this Charles Bitting, Ross Thorn, and Marsh went again to look at these lands, and Marsh pointed out the lines and subsequently, after June 4th, these agents, with Colbert, an expert, and Marsh went again to examine them, and Marsh said there was considerable timber upon those tracts. Bitting himself testified that “We could see there was green timber on these tracts, and he said they were yellow and jack pine.” On this occasion they did not continue their examination on account of rain. The appellee dealt with the appellant at arms length, and the opportunity to investigate was open to his agents. If their examination was incomplete, it was their error. If they chose to rely upon an imperfect investigation because of rain, it was their mistake. If before the completion of the sale they were advised as to the tricky character of appellant’s agent, and with their suspicions thus aroused they chose not to investigate fully, it was their fault. The repeated examinations, the employment of experts, the suspicions, the refusal to complete the sale, because of the lines, show clearly there was no warranty made or intended, and that the parties dealt with each other with their eyes open, and at arms length,
In Veasey v. Doton, 3 Allen (Mass.), 380, it is said: “ The plaintiff had no right to rely on the representation of value as a fact, nor to place any confidence or trust in it. Such representation, however exaggerated, false and deceptive it may be, is not actionable, if the subject of the sale be open to the buyer’s observation. He is bound to examine or inquire for himself and trust his own judgment, or take a warranty from the seller.”
In Smith v. Richards, 13 Peters, 42, it is said: “We think we may safely lay down this principle that wherever a sale is made of property not present, but at a remote distance, which the seller knows the purchaser has never seen, but which he buys upon the representation of the seller, relying upon its truth, then the representation in effect amounts to a warranty, at least, that the seller is bound to make good the representation. No part of the reasoning of the cases which we have been reviewing applies to such a case; they proceed upon the idea that, where the subject of the sale is open to the inspection and examination of the buyer, it is his own folly and negligence not to examine. Chancellor Kent, in the second volume of his Commentaries, 484, 485, has justly said that the law does not go to the romantic length of giving indemnity against the consequences of indolence and folly, or a careless indifference to the ordinary and accessible means of information.”
In Slaughter v. Gerson, 13 Wallace, 383, it is said: “ A court of equity will not undertake, any more than a court of law, to relieve a party from the consequences of his own inattention and carelessness. Where the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunities, he will not be heard to say that he has been deceived by the vendor’s misrepresentations. If, having eyes, he will not see matters directly before them where no concealment is made or attempted, he will not be entitled to favorable consideration when he complains that he has suffered from his own voluntary blindness, and been misled by over confidence in the statements of another.”
In Shisler v. Baxter, 109 Pa. 443, it is said : “ Mere representations as to the quality of the article sold do not constitute a warranty: Wetherill v. Neilson, 8 Harris, 448. Nor in itself is it evidence of a warranty: McFarland v. Newman, 9 Watts, 55. Unless there be fraud or warranty the purchaser takes the risk of the quality: Whitaker v. Eastwiek, 25 P. F. S. 229. So in a sale of personal property on inspection, and where the vendee’s means of knowledge are equal to the vendor’s, the law does not presume an engagement by the vendor that the thing sold is of the species or kind contemplated by the parties : Lord v. Grow, 3 Wright, 88.”
In Wetherill v. Neilson, 20 Pa. 453, it is said: “If mere representations were to be treated as part of this contract, it is not easy to see why they should not be so as to all other contracts. And if they were, then the law would foster a spirit of litigation by encouraging every man who is disappointed in the advantages expected from a bargain to drown his sorrows in the excitement of an action at law. The law repairs broken contracts, but-it does not attempt to satisfy mere expectations.”
As the appellee through his agents dealt with the appellant through his agent upon equal terms, and as there was no warranty as the basis of the sale, the learned judge erred in charging : “ The only question is whether he shall be compelled to pay more than he has already paid — whether in justice and right he ought to pay the full price stipulated in his contract, or whether, by reason of the fraud or the mistake or the warranty of the vendor (if you find there was fraud or mistake and a warranty of them), his vendee, the defendant, is entitled to a rebate off that price to the extent of his loss, under the rules of law which we have stated.” Again: “ And as we view this case this purchaser was entitled to that land as it- was repre
As soon as the appellee discovered the fraud, if he intended to disaffirm the purchase he should have done so, if the parties could then be restored to their original position; and whether they could be so restored was a question for the jury. The learned judge however says: “And with reference to these several points that we have mentioned, that the defendant would have a right to recoup and set off damages, it must not be forgotten that you must consider that, at the time these representations were discovered to be untrue, so much had been done under the contract in reference to the subject-matte]’ of it, that it was impossible to restore the parties to their former position.” This language clearly imports that so much had been done then that the original positions of the parties could not be restored. Thus the learned judge took this question from the jury, and as the facts were disputed the question was for the jury, and should have been submitted to them.
For these reasons the judgment is reversed and a venire facias de novo is awarded.