Pate v. . Blades

Oct 15, 1913
Versions:163 N.C. 267
79 S.E. 608
1913 N.C. LEXIS 163
Hoke, J.,

after stating the case: It was formerly held, in this State, that an action to recover damages for fraud and deceit would not lie in the case of a sale and purchase of land, in reference to the quantity or correct placing of the property; the position being that the facts were very readily ascertainable, and that the purchaser should have inforpied himself on these matters by a survey. The principle on which these decisions were made to rest was disapproved in case of positive fraud on the part of the vendor or purchaser, in Walsh v. Hall, 66 N. C., 233, and in the subsequent case of May ¶>. Loomis, the decisions wherein the former doctrine was upheld, and, more directly relevant to the question, Credle v. Swindell, 63 N. C., 305, and Lytle v. Byrd, 48 N. C., 222, were expressly overruled; this case of May v. Loomis being to the effect, among other positions, that the action lies, in proper instances, both in sales of real and personal property. A succinct reference to this change in the attitude of the Court on this subject, and some of the eases by which it was announced, appears in a still later case of Gray v. Jenkins, 151 N. C., at page 83, as follows: “Older cases have gone very far in upholding defenses *272 resting upon this general principle, and, as pointed out in May v. Loomis, 140 N. C., 357-358, some of them have been since disapproved and are no longer regarded as authoritative; and the more recent decisions, on the facts presented here,' are to the effect that the mere signing or acceptance of a deed by one who can read and write shall not necessarily conclude as to its execution or its contents, when there is evidence tending to show positive fraud, and that the injured party was deceived and thrown off his guard by false statements designedly made at the time and reasonably relied upon by him. Some of these decisions, here and elsewhere, directly hold that false assurances and statements of the other party may of themselves be sufficient to carry the issue to the jury when there has been nothing to arrest attention or arouse suspicion concerning them. Walsh v. Hall, 66 N. C., 233; Hill v. Brower, 76 N. C., 124; May v. Loomis, 140 N. C., 350; Griffin v. Lumber Co., 140 N. C., 514.”

In Griffin v. Lumber Co., 140 N. C., just cited, there is a very full and learned discussion by Associate Justice Connor of many of the questions embraced in the present inquiry.

Again, it has been held that while “expressions of commendation or’ opinion or extravagant' statements as 'to value or prospects or like,” not infrequently used by a party in the ordinary effort to puff up the value and quality of bis wares in a.trade, will not as a rule be considered as fraudulent in law (see the well-considered case of Cash Register Co. v. Townsend, 137 N. C., 652), yet, when a party to a bargain makes false assertions as to the value of the property, and the same are knowingly made as an inducement to the trade, and are accepted, reasonably relied upon as such, statements of this kind may constitute an actionable wrong, justifying recovery in cáse of pecuniary damage. And, in reference to the scienter, it has been held that, under some circumstances, “One who intentionally asserts a fact to be true of his own knowledge, when he does not know whether it is true or false, is as culpable in case another is thereby misled or injured as one who makes an assertion which he knows to be untrue.” Modlin v. R. R., 145 N. C., 218.

*273 The doctrine sustained in tbe cases already cited, and referring more particularly to sales of real estate, bas been approved and further applied to sales of personal property in several later decisions. Unitype Co. v. Ashcraft, 155 N. C., 63, and Sewing Machine Co. v. Bullock, 161 N. C., 1, and Machine Co. v. Feezer, 152 N. C., 516, and a reference to these cases will no doubt be of aid -to a proper consideration of the one now presented.

Applying the principles as stated, we are of opinion that, on the facts as they now appear of record, the judgment of nonsuit should be set aside, for, accepting the facts which make for plaintiff’s recovery as true and construing them in the light most favorable to him, this being the established rule when a nonsuit has been ordered, it appears in evidence that plaintiff, under 21 years of age, in the city of Baltimore, where he was stationed as an enlisted soldier awaiting transportation to the Philippine Islands, by the false statements and assertions of defendant as to value and quantity, has been induced to convey to the latter, for $1,000, between 1,000 and 2,000 acres of land, “nearer two than one,” situate in the county of Craven, and worth from $11,000 to $12,000, the plaintiff being entirely ignorant of the real facts and relying on the statements of defendant to -the effect that the price paid was a just equivalent and “that defendant had been over the land; had looked over it and knew it thoroughly.”

It is urged for defendant that, even if this view should prevail as to the first deed, there are no sufficient facts impeaching the second, and nothing occurred at that time to prevent full investigation of the property; but this position may not be allowed as a necessary or legal conclusion from the testimony, for., if the plaintiff was induced to make the first deed by fraud and deceit of the defendant, and he then made a second deed, believing and having reason to believe the assurances made in reference to the first, and there was nothing occurring in connection with the execution of the second deed to arouse attention or provoke inquiry into the amount and value of the property, and plaintiff, under all the facts and attendant circumstances, acted as a man of reasonable business *274 prudence in making the second deed without further investigation, in that event, it may well be determined that the fraud and deceit existent when the first deed was obtained was effective in procuring the execution of the second, and the one was the natural result of the other.

On the evidence, as it now appears, the plaintiff is entitled to have the issues submitted- to a jury, and it is so ordered.

Reversed.