24 N.C. 32 | N.C. | 1841
It was an action on the case for deceit in the sale of land. It appeared in evidence that the defendant was the owner of a tract of land in Davie County, containing 210 acres, and sold the same to the plaintiff for a certificate of land script on the Texan Government; that the contract of sale and the executing of the deed for the land took place in the county of Cabarrus. Before the deed was executed the defendant told the plaintiff the tract of land was worth about $3 per acre, that it had sold for $500 or $600, and that it was good land. It was also in evidence that when the parties called upon the person who wrote the deed, the plaintiff stated to the draftsman that he was buying land he had never *28 (33) seen; that the defendant had affirmed it to be good, and worth, about $3 per acre, and that it had sold for from $500 to $600. The deed was then executed, and was offered in evidence on the trial; the plaintiff then proved by witnesses from Davie County, acquainted with the land, and one of whom had owned the land and sold it to the defendant, that the land was not worth what the defendants had represented it to be; that it was poor land, and had never been sold for $500 or $600 to their knowledge, but had been sold for much less. It was further in evidence that the plaintiff, after seeing the land, became dissatisfied, and refused to perform a part of his contract, which was to iron a wagon for the defendant.
The defendant's counsel insisted that the action would not lie in this case, admitting the representation to have been false and fraudulent, because it was the plaintiff's own folly not to inform himself of the truth of the matter.
The court sustained the view taken by the defendant's counsel, and remarked that an action could not be sustained for every act of immorality, however, injurious it might be to another individual; that in this case, if the plaintiff could have informed himself as to the value of the land by going upon it and there making an examination for himself, or if he could by making inquiries have ascertained what amount it had sold for (as he might have done in this case), he could not maintain the action, although the affirmation was false; that if he could have ascertained the truth by reasonable diligence, it was his own folly to trust to the misrepresentation of another.
In submission to this opinion, the plaintiff suffered a nonsuit and appealed to the Supreme Court.
The defendant (in the county of Cabarrus) sold to the plaintiff a tract of land lying in the neighboring county of Davie, which land the plaintiff had never seen. At the time of the contract and at the time of the execution of the deed the defendant said that the land was worth about $3 per acre; that it had sold for $500 or $600 and that it was good land. It was alleged by the plaintiff that those assertions were all false, and known to be false by the defendant when he made them. The judge informed the jury that an action of deceit would not lie, admitting that the representations were false and fraudulent, if it was the plaintiff's own fault not to have informed himself of the truth of the matter, if by reasonable diligence he could have done so; that if he could have informed himself as to the value of the land by going upon it and there making an examination for himself, or if he could by making *29
inquiries have ascertained for what amount is sold (as he might have done in this case), he could not maintain the action, though the affirmation were false; that if he could have ascertained the truth by reasonable diligence, it was his own folly to trust to the representations of the vendor. We do not see any error in this charge of the Court. The true rule is stated to be that the seller is liable to an action of deceit if he misrepresent the quality of the thing sold in some particulars in which the buyer has not equal means of knowledge with himself; or if he do so in such a manner as to induce the buyer to forbear making the inquiries which for his own security and advantage he would otherwise have made. 2 Kent Co., 487. The misrepresentation must be of a kind the falsehood of which was not readily open to the other party. Per (35)Taylor, C. J., Fagan v. Newsom,
PER CURIAM. Affirmed.
Cited: Setzer v. Wilson,
(36)
