93 Va. 263 | Va. | 1896
delivered the opinion of the court.-
The bill filed in this case shows that in May, 1890, W. T. Goodloe, trustee, sold to C. D. Orr and R: E. Litton a lot of
Orr and Litton filed their answer, which was treated as a cross-bill. In it they admit the purchase of the lot as set but in the bill, but they aver that they were induced to buy by reason of the false and fraudulent representations made to them by those interested in the sale of the lots, and for whom Goodloe, the plaintiff, was acting as trustee. The representations relied on are that the respondents were assured that their vendors “ would build as soon as it could be done a substantial bridge across Powell’s river from said Sulphur Springs Addition to the land on which the L. & 1ST. R. R. depot is situated; that they had made financial arrangements and would build, as soon as it could be done, a large and commodious hotel on a certain knoll in said Sulphur Springs Addition; that they had made financial arrangements to continue the grading of streets, and would continue the grading.” The respondents aver that all of these representations were' falsó' and' fraudulent; that no financial arrangements had been made, nor was there any intention to complete said improvements, or any of them, at the time the representations were made; and they further aver that these representations constituted the inducement which led them to purchase the lot in the bill mentioned, without which they never would have made the purchase.
Depositions were taken, from which it appears that the persons for whom Goodloe was acting as trustee did represent that a substantial bridge would be built across the river; that a hotel would be erected, and that the streets would be graded substantially, as is claimed in the cross-bill of the defendants, Orr and Litton, but the proof fails to show that there were any representations as to any financial arrangements having been made or entered into, as charged in the ■cross-bill.
The only representation of an existing fact which is set out in the cross-bill is the averment that the defendants were assured that financial arrangements had been made, and as to this averment there is no proof. With respect to the representation that a hotel would be erected; that a bridge would be built; and that streets would be graded, they were but the expression at most of an existing purpose, and not a representation of an existing fact.
In the case of Watkins v. West Wytheville Land Co., 92 Va., which was an action at law, it is said: “Amisrepresentation, the falsity of which will afford a ground of action for damages, must be as to an existing fact. It must he an affirmative statement or affirmation of some fact, in contradistinction to a mere expression of opinion, which ordinarily is not presumed to deceive or mislead.”
In that case two pleas were rejected which averred that the plaintiff represented at the time of the sale that certain valuable improvements, to-wit, a hotel, store, factory, and other manufacturing plants would be erected, and that an electric railroad would be constructed near the property which would greatly increase the value of the lots; that these representations were false; that the improvements had not been Jnade, and that the lots had consequently become of little" value. ' •
The opinion in that case goes on to say, in respect to that plea, that if it can be “ supported by legal proof, the defendant would be entitled to recover.” Of this there can be no doubt, and the court emphasizes the charácter of the evidence required in order to exclude the idea that a contract in writing could be altered or varied by proof of a contemporaneous verbal understanding or agreement. The law is so clearly stated in the case just referred to that any further citation of authority would seem to be unnecessary.
This court has, however, still more recently reaffirmed this-statement of the law in the case of Max Meadows Land and Improvement Company v. Brady, 92 Va. 71, in which the Virginia authorities upon the subject are considered. It is there said that “ the misrepresentations which will sustain an action of deceit, or plea at law, or bill for the rescission of a contract, must be positive statements of fact, made for the purpose of procuring the contract; that they must be untrue;
The representations in this case were not representations of existing facts, but were at most expression of opinion that the improvements mentioned would be made.
We are of opinion that there is no error in the decree, and it is affirmed.
Affirmed.