Kertz v. Dunlop
| Decision Date | 05 December 1859 |
| Citation | 13 Ind. 242 |
| Parties | Kertz and Others v. Dunlop |
| Court | Indiana Supreme Court |
From the Marion Circuit Court.
The judgment is reversed with costs. Cause remanded.
J Coburn, for appellant.
After a statement of the purport of the representations, Mr. Coburn argued as follows:
Were the representations of a character such as a Court will regard in cases of this kind?
They were of matters of fact as to streets, as to houses, as to contracts An agreement to open a street or alley, or build a house, is a fact; a price of a lot sold to another person and adjoining, is a fact; the intentions of the purchasers and owners were facts; indeed, in many cases, the intention is the great fact. See Joice v. Taylor, 6 Gill and Johns. 58.
They were material; for it is material that streets and alleys should be opened directly to town; that houses should be built; that improvements should go on.
They were peculiarly within Dunlop's knowledge. They were, as represented, calculated to deceive, and did deceive the plaintiff. Kertz put confidence in Dunlop, as he (Dunlop) knew, or ought to have known, more than all the world beside as to his own addition.
A gross fraud was perpetrated: not a house is built, not a street or alley opened, not a thing done. A large addition is laid out and it is to grow and fill up, and become populous, and well built, with thoroughfares to the city--and nothing is done.
Now did the plaintiff delay too long to offer rescission? The bargain was made in June, 1855. In the fall of that year Kertz finding that part of Dunlop's representations were false, offered to rescind. In April, 1857, he offered again to rescind, when he had found that all of them were false, utterly and totally so.
These improvements were to be made during 1855 and 1856, and during that time the notes were maturing, Dunlop was suing, and the false and fraudulent representations were being developed, and the fraud being confirmed.
Kertz had a right to wait until all of these representations were proved false.
Kertz could not perhaps have enjoined the collection of any one of these notes until 1857, when the time in which these improvements were to be made had expired. At any rate he was not bound to enjoin each note as it became due, but could take them all at once.
In the full and masterly discussion of the subject of frauds, in the case of Gatling v. Newell, 9 Ind. 574, we find the law upon which we rely, especially as to lapse of time and a restoration of the parties to statu quo. See, also, 9 Ind. 9. [Colson v. Smith.]
In this case the land was not sold, and could be restored unincumbered to Dunlop. The judgments before the justices intervened; these were nothing more than payments of the notes, of which Dunlop cannot complain, and no third party intervened.
Perhaps if Dunlop had assigned the judgments, and innocent parties were interested, a Court of equity would refuse to intercede; but here the very man who perpetrates the fraud comes in and acknowledges it, but says it was so long ago, and it is now ratified by a judgment; it was dishonest, but now it is sanctified by a judgment upon default before a justice of the peace. A more astonishing, impudent argument cannot be conceived of.
In the case of Hunt v. Moore, 2 Penn. St. 107 (), Justice Royns says, in view of a similar argument:
This is the language of a judge whose moral sense as well as his sound discrimination revolted at the quiet but monstrous outrages of wily cheat. Going on further he says; "A Court of equity would lay hold of slight circumstances to release a victim to such duplicity. See, also, Napier v. Elam, 6 Yerg. 108; Young v. Hopkins, 6 Mon. 23; Campbell v. Whittingham 5 J. J. Marsh. 96; Barham v. Randolph, 4 How. (Miss.) 435; 3 Sandf. (Sup. C.) 526; Clark's Ch. 571.
Our own Supreme Court, in the case of Peter v. Wright, 6 Ind. 194, intimate that frauds are to be established by various circumstances which are slight in themselves. In that case, the judicial mind with a conscientious regard for honesty in dealing, seized upon every badge of fraud to wrest from the wrongdoer his ill-gotten gains. See Matthews v. Bliss, 22 Pick. 53.
In the case of Boyce's Executors v. Grundy, 3 Pet. 210, the Court held that a series of judgments might be rendered, as in this, on installments due for land, and that in the end they might all be enjoined and set aside for fraud; in other words, it was not necessary to try the question upon each installment and create a multiplicity of suits, but that it might all be done at once. And that a misrepresentation is not susceptible of reparation in damages. The law abhors fraud, and does not permit it to purchase absolution or indulgence.
In 22 Pick. 53, it is held not to be necessary that the false representation should be the predominant feature inducing the sale; but it is sufficient if at was a motive at all inducing to the sale. If it was one of several motives acting together, and by their combined force, producing the result, it is proper to be considered.
H. C. Newcomb, J. S. Tarkington, J. Morrison and C. A. Ray, for appellee.
Counsel for the appellee examined the charges of fraud, in their order, as follows:
1. That Dunlop represented to him that from twenty to twenty-five houses would be put up in this subdivision during the years 1855 and 1856, and that such was the intention of the purchasers; that within that time the subdivision would be settled and built up. These seem rather contradictory allegations--that within two years twenty-five or thirty houses would be built on the one hundred and five lots, and in the same time they would be fully settled and built up, and if both statements were made, it must be evident that Kertz did not believe and rely upon both. It is stated in the complaint, that a large number of the lots had been sold before Kertz bought; indeed, he says, the whole of them, and it was not an unreasonable opinion that twenty-five or thirty of them, at least, would be built upon in two years. This was a mere expression of opinion, reasonably founded, we think, and if untrue or mistaken, is no reason for rescinding the contract, for it would offer only a probability of a future advance in the price of the lots, and could not have added, at the time, to their intrinsic value. And it is stated in the complaint, that some of the purchasers of the lots had agreed in their title bonds, to build houses on their lots. It was, therefore, very natural that Dunlop should express the belief that twenty-five or thirty houses would be erected within the period stated.
2. That Lawson Abbett, who had purchased some of the lots intended to build an expensive dwelling house thereon in 1855. What particular advantage this would have been to Kertz, he does not inform us.
3. That Dunlop represented he had sold certain lots to Abbett for 150 dollars each, when, in fact, he had sold them for but 100 dollars. He does not intimate that Abbett's lots were not worth 100 dollars each, which was 10 dollars more than he (Kertz) was to pay, so that the most that can be made of that allegation is, that Kertz was disappointed in making a speculation of 60 dollars per lot, and not that they were worth less than he paid. That this is no ground for relief, see Cronk v. Cole, 10 Ind. 489, and cases there cited.
4. That Dunlop represented that it was the intention of B. F. Morris to open a street from said subdivision through his land to the city; and that Morris had agreed with Dunlop to do so; and that he had also agreed to open half an alley on the north side of the subdivision. It is also averred that Morris never intended to open said streets and alleys, but that the same are enclosed. Testing this averment by the rule that a pleading is to be most strongly construed against the pleader, and it amounts to nothing more than this--that Morris had agreed and intended to open a street already dedicated to the public, for, although it is said that the street was to be opened through the land of Morris, there is no averment that he was thereafter to dedicate so much of his ground to the public, that the street was not already public property. In this view of the case, any person interested had a right to insist on opening the street, and could compel the same to be done; and the wrong of Morris in keeping it fenced up, is no cause of complaint against Dunlop if he had ever promised Kertz to open it.
5. That Dunlop represented that he had sold seven lots to Thomas Records. How this could have enhanced their value in the eyes of Kertz, it is hard to perceive, for if not sold to Records they were to somebody else, as the complaint shows that one hundred and five lots were sold, which was all there were.
6. That Dunlop fraudulently represented the lots to be worth the price Kertz agreed to pay for them, and that they were, in fact, worth but 100 dollars. The complaint shows that Kertz lived in the city of Indianapolis; he had the opportunity then of acquainting himself with their value, and no action would lie, under such circumstances, for an affirmation of value, though the statement might be too high.
As to the offer of the plaintiff to rescind, and the time of the offer:
1. He had discovered...
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