60 Ark. 281 | Ark. | 1895
(after stating the facts). The answer was good as a counter-claim. It stated a cause of action growing out of the fraudulent representations of appellee with reference to matters of fact peculiarly within his knowledge. The appellant alleges his own ignorance and inexperience in computing the number of bushels of apples in an orchard or on an apple tree, and that of this he expressly informed appellee and that he should rely upon his (appellee’s) “knowledge, judgment and honor.” He alleges that appellee professed to know, and did know, approximately, the number of bushels of apples in the orchard, and appellee stated that he “believed there were three thousand bushels,” and he “knew and could safely say there were as many as twenty-two hundred bushelsthat there were five hundred bearing Ben Davis apple trees, three hundred and seventy-five Winesap, and three hundred and fifty other varieties, or a total of about twelve hundred trees; that these representations were false, and that the appellee knew that such representations were false, or at least made them not knowing or believing them to be true. The answer further alleges that these statements induced the sale.
These statements were clearly within the rule announced by this court in Gammill v. Johnson, 47 Ark. 335, where it is said: “But when the representation is made of a fact that has nothing to do with opinion, and is peculiarly within the knowledge of the person making it, the one receiving it has the absolute right to rely upon its truthfulness, though the means of ascertaining its falsity were fully open to him. It does not lie in the mouth of declarant to say it was folly in the other party to believe him.” And also in Hanger v. Evins, 38 Ark. 334, where it is said: “But false representations must not only mislead, but must have been made fraudulently and with that intent.” The person making them “is liable if he knew them to be false, or, knowing nothing about them, asserted them to be true.” Beebe v. Knapp, 28 Mich. 55. See, also, 1 Bigelow on Frauds, 53 et seq, 80, 81; Cottrill v. Krum, 100 Mo. 397, S. C.; 18 Am. St. Rep. 549; Benj. on Sales (Bennett), 449; Litchfield v. Hutchinson, 117 Mass. 195; Chatham Furniture Co. v. Moffatt, 147 Mass. 404.
So much of the appellant’s answer as stated that ‘ ‘the price which defendant agreed to pay for said apples was fifty cents per bushel” was demurrable, as tending to vary the written terms of the contract which specified that appellee had sold “his apples in his orchard consisting of twelve hundred trees for eleven hundred dollars.” Proof to sustain this allegation, if it were disconnected with a charge of deceit and fraud, would be clearly inadmissible. But when it is alleged that a false number of bushels was stated as above, with the intent to deceive and induce the purchase, and which were relied upon, and did induce the purchase, then such representations become a tort dehors the contract, but growing out of transactions which led to its consummation, and parol proof may be admitted to establish it. Hanger v. Evins, 38 Ark. 341.
The second paragraph of the demurrer was general, and applied to matters set up in the answer as a counterclaim. It should have been overruled. Reversed, with directions to overrule the demurrer.
