118 Ky. 403 | Ky. Ct. App. | 1904
Opinion op the court by
Reversing
The appellant, George W. Sohan, sold and conveyed to the
Appellee does not seriously rely upon the alleged shortage in acreage. Indeed, it is apparent that there is no merit in this part of her defense, for it is not likely that appellant represented that the farm contained 35 acres, when the deed from his vendor stated that it contained only 31 1-2 acres; and, moreover, appellee offered no objection to the deed made her by appellant, which also gives the number of acres of the land conveyed as 31 1-2, and thereby informed her of that fact.
Appellee’s proof seems to have been directed more particularly to the other alleged misrepresentations set forth in her answer. We think the evidence tends to prove the following state of facts:
(1) That appellant advertised his land through his Louisville agent, W. H. Pipes, whose deposition appears in the record, in which it is denied that any misrepresentations were made by him as to the land, or through the advertisement. Upon the contrary, it appears from his deposition that, after appellee and her husband looked at the land, they told him they thought it exactly as represented by him, and that it was the only place they had seen advertised that came up to the advertisement.
(2) It also appears from the evidence that before appellee, who lived in Louisville, purchased the land of appellant, she went with her brother-in-law, Britt, to look at it, and did in fact with him inspect it, or have ample opportunity to do
(3) It further appears that appellant himself had paid $1,735 for the land when he purchased it, and that the personal property which he sold appellee with the land was "worth $300.
As against these facts, we find the testimony of the appellee to the effect that appellant did represent the land to be productive, and that it would produce 50 bushels of corn per acre; that it did not wash; and that the cellar of the house was dry. Three or four other witnesses introduced by appellee testified that the land was poor and unproductive, and not worth, buildings included, exceeding $600.
Taking the evidence all together, however, we are of opinion it conduces to prove that whatever representations were made to appellee by appellant with reference to the quality and value of the land were mere expressions of opinion, not
Inadequacy of price, alone, or the payment by the purchaser of a greater price than the thing pui*chased Is worth, will not authorize a rescission of the contract, and did not justify the cancellation' of the notes sued on. It must further and satisfactorily appear that appellant, in making the sale, was guilty of actual fraud, or at least of such unfair conduct as put appellee at a disadvantage. It is manifest that the chancellor, in deciding this case, proceeded upon the sole theory that appellant had, exclusive of the notes sued on received as much as, in the chancellor's opinion, the farm was worth. This, in our opinion, was not a proper .ground upon which to base the judgment. It was not the province of the chancellor to modify or change the contract between the parties merely because it was to the undue advantage cf one, or the disadvantage of the other.
In Livermore v. Middlesboro Town & Land Co., 106 Ky., 140. 50 S. W. 6, 20 Ky. Law Rep., 1704, in discussing this subject this court said: “To establish actionable fraud, or fraud against which equity will relieve, ... it must appear that the misrepresentation was of a matter of material fact, as distinguished from opinion, at the time or previously existing, and not a mere promise for the future; must be relied on by the person whose action is intended to be influenced; and must be made with knowledge of its falsity, or under circumstances which did not justify a belief in its truth. This is the
If, as appears from the evidence to be the case, the land sold by appellant to appellee cost him $1,735, and he put with it in the sale to appellee personal property of the value of $300, it made the total cost of it to him $2,035, or $35 more than he received from appellee for it. It would seem, therefore, that he had some reason for declaring to appellee that the land was worth $2,000, and for putting forth such claims as would make it appear to be worth that sum. At any rate, it has not been shown by the evidence that he made any statement as to the value of the land which he knew at the time to be false. If the appellee had time and opportunity to examine the land, or'cause it to be examined by another in her behalf, and such examination was made, she was not entitled to a rescission, or to the relief granted, although appellant may have made false representa! ions as to its quality or value.
The case of Peak v. Gore, 94 Ky., 533, 15 R., 278, 23 S, W., 356, seems to us to be decisive of this case. The circumstances of that case wmrked a much greater hardship upon the purchaser than will result in this case. In that case, as in this, the purchaser was a woman. In that case the woman was a widow. In this case she has a husband, who made for her an examination of the property, and other
We think it reasonably plain from the evidence that appellee, in the matter of the land trade, relied in part upon her own judgment and that of her husband, but more especially upon that of her brother-in-law, and that at least cne visit to and inspection of the land by the latter occurred after she had talked with appellant, about the land. Manifestly, she purchased the land after having time.and opportunity to ascertain herself, and through others, the quality and value of the land and buildings, and did in fact examine it. If, therefore, appellant made any false or fraudulent representations in regard thereto, such representations can not, “according to a settled rule,” afford ground for a rescission or abatement in the purchase price.
What is here said in reference to the trade as to the iand applies with equal force to appellee’s complaint about the corn; her contention on that score being that appellant represented that there were 100 bushels of corn on the land that would go to her in the trade, when in fact ther'e were only 12 bushels. The corn is not mentioned in the deed, and does not appear to have been a part of the personal
The view of the case herein expressed makes it unnecessary for us to consider the question as to whether it was necessary for appellee to offer to return the personal property received by her of appellant under the deed, to entitle her tc a rescission of the contract.
For the reasons herein indicated, the judgment is reversed, and cause remanded, with directions to the lower court to set aside the judgment appealed from, and, in lieu thereof, enter judgment in appellant’s behalf for the amourt of the notes sued on, the enforcement of the lien retained in the deed to secure their payment, and for such further proceedings as may be consistent with the opinion herein.