141 Ky. 648 | Ky. Ct. App. | 1911
Opinion op the Court by
Reversing.
Shortly thereafter the appellee filed an amended petition, in which he withdrew all that portion of the original petition and the prayer thereof, by which he sought to recover judgment on the note; and for a new cause of action he alleged that the true contract, between the parties was for a sale of 600 trees on appellee’s land for $2,250, which sum was to be paid when the timber was placed by the appellants on the bank of Big Half Mountain creek, a tributary of the Licking river. The amended petition charges that his son's caused the deed to be pr-epared conveying to themselves all of the trees upon appellee’s land (which were.about 1,400 in number), instead of 600 trees according to the true contract, that appellee, having implicit confidence in the honesty of his sons, signed the deed without reading it or acquainting himself with its contents, and that he took the note in his possession without observing the time of its maturity. ITe further alleges that he was greatly surprised when, within a few days after the trade, he discovered that the deed conveyed all of his trees 18
The appellants denied all the material allegations 'of the petition and called upon appellee to file said noth, which he has failed to do. Furthermore, they asserted that the contract as written represented the trade between the parties; that appellee fully understood it when he executed it; that they had in good faith attempted te carry it out, and had offered to, and were willing to give the appellee security for the payment of the purchase price of the timber.
Upon final hearing the circuit judge reformed the deed so as to make it convey only'599 trees for the $2,250 purchase price, with a lien on the trees to secure the payment of the purchase price, and enjoined the appellants from removing’ any of the timber until they should give bond with good surety for the payment of the $2,250; 'and that part of the deed which conveys more than 599 trees, was canceled.
Appellee testified that he sold to his sons all hut eight of the 607 trees on the land described, and that he reserved there eight trees for his personal use in making certain repairs on the farm. Appellee had been talking with his sons for some five or six months with the view
The only evidence tending to support the charge of fraud is contained in an incident that occurred while the clerk was writing the deed. When he came to describe the property sold, some one suggested that he describe it by giving the number of the trees at 607, while one of the appellants suggested that it would be easier to give the general description or boundary of the land by reference to the adjoining farms; and the latter method was followed. This suggestion grew out of the fact that, some five or six months before the sale, appellants’ father had asked them how many trees there were having a diameter of 16 inches and upwards, and they replied that there were something over 600. This answer evidently led to the suggestion of making the description give the number of trees instead of the boundary. But it is evident, beyond any question, that appellee did not rely npon this statement or report by his sons, and that, it did not induce him to make the contract. New York Life Insurance Co. v. Hord, 25 Ky. Law Rep., 1531. Pomeroy, in his Equity Jurisprudence (Sec. 890), says:
“Another element of a fraudulent misrepresentation, without which there can be no remedy, legal or equitable, is, that it must be relied upon by the party to whom it is made, and must be an immediate cánse of his conduct which alters his legal relations. Unless an untrue statement is believed and acted upon, it can occasion no-legal injury. It is essential, therefore, that the party ad*652 dressed should trust the representation, and he so thoroughly induced by it that, judging from the ordinary experience of mankind, in the absence of it he would not, in all reasonable probability, have entered into the contract, or other transaction.”
And, as to when one party is justified in relying upon the representations of another, Pomeroy says:
“As a generalization from the authorities, the various conditions of fact .and circumstance with respect to the question how far a party is justified in relying upon the representation made to him may be reduced to the four following cases, in the fir'st three of which the party is not, while in the fourth he is, justified in relying upon the statements which are offered as inducements for him to enter upon certain contract: 1. When, before entering into the contract or other transaction, he actually resorts to the proper means of ascertaining the ■truth and verifying the statement. 2. When, having the opportunity of making such examination, he is charged with the knowledge which he necessarily would have obtained if he had prosecuted it with diligence. 3. When the representation is concerning generalities equally within the knowledge or the means of acquiring knowledge possessed by both parties. 4. But when the representation is concerning facts of which the party making it has, or is supposed to have, knowledge, and the other party has no sush advantage, and the circumstances are not those described in the first or the second case, than it will be presumed that he relied on the statement; he is justified in doing so.” (Sec. 8921)
The clerk, who drew the deed, carefully read it over to appellee and his wife, and explained it to them fully; and there is every reason to believe they understood it. Furthermore, the appellee had lived upon this property for thirty years, and certainly knew more about it and the quantity of timber upon it, and had more opportunities to acquaint himself with these facts than either of his sons. Evidently, appellee was anxious to sell the timber, and, if he could not make a trade for cash, he was willing to allow the boys to buy it 'upon shares. He helped them make their money arrangements by which they bought teams to market the timber. Appellee after-wards told Brown in the presence of Allen, that he had sold all of his timber within his boundary, and he seemed pleased at the good price he got for it. In going over the .and and examining the timber, the sons were acting in
In McCall v. Bushnell, 41 Minn., 37, the court said:
“It is inexpedient, upon grounds of public policy, that a solemnly executed instrument, known at the time_ to have been executed for the very purpose of embodying and evidencing the agreements and accomplishing the purposes of the parties, should be set aside upon the ground of fraud, unless the proof be clear and strong.”
The contract should have been carried out by the parties, and the court erred in rescinding it in part and in reforming it in any respect. However, since the appellants have offered to give the appellee^ surety for the payment of the purchase money which will be due within a very short time, they will be permitted to carry out their contract upon giving that surety; and their time for completing the contract and paying the purchase money will be extended by adding to the time of the contract, the period during which they have been prevented from working by reason of the injunction herein. If, upon a return of the case, the appellants be either unable or unwilling to give this security, they may be made whole by reason of the appellee’s breach of the contract by such legal remedies as may be appropriate under all the circumstances. The injunction was improperly granted, and will be dissolved.
Wherefore the judgment is reversed and cause remanded for further proceedings consistent with this opinion.