Thweatt v. McLeod

Dec 15, 1876
Versions:56 Ala. 375
BBIOXELL, O. J.

A misrеpresentation of a material fact, on which another has a right to rely, whether made willfully and intentionally, or from mistake, inadvertence, or ignorance, will operate to avoid a contract foundеd on it.— Juzan v. Toulmin, 9 Ala. 662; Munroe v. Pritchett, 16 Ala. 785. The party injured by it has his election, either to rescind the contract, or, affirming it, to recover damаges ‍‌​‌‌​​‌​​​‌​‌​‌​‌‌​‌​‌‌​​​‌‌​​​‌​‌​‌‌‌​‌‌​​‌‌‌​‌‍for the injury, or insist on it as matter of defense to an action founded on the contract. — Kerr on Fraud, 330.

The misrepresentation of which appellant complains was, that the tract of land contained one hundred acres in timbered land, when in fact it contains not more than seventy acres. The materiality of thе representation is. apparent from the difference in the value of the tract, if the representation had been true, and its value as the fact is shown to exist. The representation did not refer to the title of the vendor, nor to the quantity of land, nor to any matter embraced in the bond for title, or the notes executed for the payment of the purchase-money. It was in relation to a collateral thing; and in the аdmission of parol evidence to prove the representation, the rule inhibiting its introduction to add to, vary, or alter the written contract, is not infringed. The evidence is addressed to the consideration of the сontract, and its failure.— Cozzins v. Whitaker, 3 Stew. & Port. 322; Dixon v. Barclay, 22 Ala. 370; Pierce v. Wilson, 34 Ala. 596; 1 Green. Ev. 284.

A careful examination of the evidence may leave it in doubt, whether the representation was in fact made at the time of ‍‌​‌‌​​‌​​​‌​‌​‌​‌‌​‌​‌‌​​​‌‌​​​‌​‌​‌‌‌​‌‌​​‌‌‌​‌‍the sale, and whether the appellant relied on it, аs an element of the contract, or whether he did not rely wholly *378on his own knowledge of the lands. We incline to the opinion, the last is true. But, conceding the appellant’s reliance on the representatiоn at the time of the purchase, it is too late for him now to urge it, either as a ground for a rescission of thе contract, or in recoupment of the purchase-money. Contracts tainted with fraud, or into which a party is induced by mistake, or by misrepresentation, are capable of ratification and confirmatiоn; and the ratification or confirmation cures the infirmity. If, with full'knowledge of all tbe facts, the party injured proceeds to consummate the contract, if executory, treating it as valid, it is thereby confirmed, and he will not bе allowed subsequently to impeach it. The case of Gilmer v. Ware, 19 Ala. 252, is an illustration. The purchaser of a slave at рublic auction, having information of the unsoundness of the slave, and of facts constituting fraud in the sale, nevertheless paid the purchase-money, without objection; and it was held, he could not subsequently maintain an action on the case to recover damages because of the fraud. If, while ‍‌​‌‌​​‌​​​‌​‌​‌​‌‌​‌​‌‌​​​‌‌​​​‌​‌​‌‌‌​‌‌​​‌‌‌​‌‍the contract is executory, the party injured, with full knowledge of all the facts, elects to proceed in its execution — entеrs into new negotiations and stipulations, whereby he obtains a benefit, and the other party sustains a corrеsponding detriment — he is regarded as ratifying or confirming the contract, and it becomes obligatory on him. — Edwards v. Roberts, 7 Sm. & Mar. 544; Pearsall v. Chaplin, 44 Penn. 9.

The lands were originally purchased by appellant for a certain number of bales of cotton, deliverable in different quantities, at the expiration of one, two, and three years from the time of purchase. Possession followed the purchase; and three years having elapsed; two of the installments of the cоtton having been delivered, and the time for the delivery of the third arriving, desiring indulgence, he enters into a new agreement with the vendor. By this new agreement, the contract is changed from one for the delivery of cottоn, into a contract for the payment of money absolutely, and the time of payment is extended for twelve months. The appellant then had full knowledge that there was not a correspondence of thе quantity of timbered land in the tract, with the quantity he avers the vendor rejDresented it to contain. In this transaction, thе appellant must have intended an affirmance of the original contract, or he intended to lull the vеndor into security — into reliance on it, and into the belief that he designed its performance; thereby obtaining the benefit of an extension of the time of payment, while secretly intending, after he had realized the bеnefit, to impeach the contract for a misrepresentation of which he had abstained *379from cоmplaining. To suppose the last was his intention, is the imputation to him of an intentional deception, more offensive in good morals than the misrepresentation attributed ‍‌​‌‌​​‌​​​‌​‌​‌​‌‌​‌​‌‌​​​‌‌​​​‌​‌​‌‌‌​‌‌​​‌‌‌​‌‍to the vendor. The one may have been made innocently, through ignorance, mistake, or inadvertence. The other is willful, and deliberate, for the рurpose of deceiving.

The new contract into which the appellant entered, the benefits of whiсh resulted to him only, was a confirmation of the original contract, precluding the defense now interpоsed. The case of Huckabee v. Albritton, 10 Ala. 657, is not in conflict with this view. The question of that case was, whether a mere subsequent promise to pay, after the discovery of the fraud, would preclude a defense; and it was properly hеld, that it would not. The court, ‍‌​‌‌​​‌​​​‌​‌​‌​‌‌​‌​‌‌​​​‌‌​​​‌​‌​‌‌‌​‌‌​​‌‌‌​‌‍however, clearly indicate that, if by the new promise the vendor had been led into a different position from that in which he stood when it was made, or had been induced to act on it, the rule would be different.

The decree of the chancellor is affirmed.

Stone, J., not sitting, having been of counsel.