Manning v. Carter

• Citation: 77 So. 744,201 Ala. 218
• Decision Date: 20 December 1917
• Docket Number: 5 Div. 672
• Parties: MANNING v. CARTER.
• Court: Supreme Court of Alabama

77 So. 744

201 Ala. 218

MANNING v. CARTER.

5 Div. 672

Supreme Court of Alabama

December 20, 1917

Rehearing Denied Jan. 24, 1918

Appeal from Circuit Court, Chilton County; Leon McCord, Judge.

Suit in equity by J.H. Carter against D.O. Manning. From the decree rendered, Manning appeals. Reversed and remanded.

Middleton & Reynolds, of Clanton, for appellant.

Hill Hill, Whiting & Stern and W.R. Cooper, all of Montgomery, for appellee.

THOMAS J.

This is the second appeal in this cause, the first (Manning v Carter) being reported in 192 Ala. 307, 68 So. 909.

The rule of abatement of the purchase price for land, where the vendor has represented that the tract embraced a certain acreage, and there is a deficiency, and such representation as to acreage was a material inducement to the purchase, was discussed on the former appeal in this case and in Terry v. Rich, 73 So. 76.

We have examined the evidence, and are of the opinion that the court improperly taxed against appellant the cost incurred in the lower court. The preponderance of evidence shows that the conditions bringing on the litigation were due to the reckless or willful misrepresentations of the appellee, as to the situs and extent of his lands, inducing appellant to the purchase. And it is immaterial that the misrepresentations were not made with dishonest motive. Honest belief in the truth of a statement of fact, made as an inducement to the consummation of a contract, does not relieve him making the statement of his legal liability therefor to one induced to act to his detriment thereby. Shahan v. Brown, 167 Ala. 534, 52 So. 737; Greil Bros. v. McLain, 72 So 410; Manning v. Carter, supra; Henry v. Allen, 93 Ala. 197, 9 So. 579; Ball v. Farley, 81 Ala. 288 292, 1 So. 253; Jordan v. Pickett, 78 Ala. 331; Munroe v. Pritchett, 16 Ala. 785, 50 Am.Dec. 203; Prestwood v. Carlton, 162 Ala. 327, 333, 50 So. 254; Corry v. Sylvia y Cia, 192 Ala. 550, 68 So. 892; Code, §§ 4298, 4299. In equity the question of costs rests largely in the discretion of the chancellor (Code, § 3222; Connor v. Armstrong, 91 Ala. 265, 9 So. 816; Kitchell v. Jackson, 71 Ala. 556; Ex parte Robinson, 72 Ala. 389), and the taxation thereof may be varied on appeal, as the justice of the case may require (Hunt v. Rewin, 4 S. & P. 138; Alexander v. Alexander, 5 Ala. 517; Allen v. Lewis, 74 Ala. 379; Am.Ch.Dig. 117). It was held by Chancellor Kent that where the parties stand equally fair, the actor, he who brings the other into court, ought to pay the expenses. Catlin v. Harned, 3 Johns.Ch. (N.Y.) 61; Alexander v. Alexander, supra, 5 Ala. p. 521.

Though appellant was ready, able, and willing to pay the just and true amount of the balance due on the purchase price of the land, to avoid interest thereafter accruing on such amount, he should have tendered the entire amount, including interest, and made good the tender by paying such amount into court. Code, § 5334; McCalley v. Otey, 99 Ala. 584, 589, 12 So. 406, 42 Am.St.Rep. 87.

If the value of the improvements was deducted from the purchase price of the land, in order to arrive at a true estimate of its average acre value--as a basis for abatement of the purchase money for the deficiency of acreage--the decree must be reversed. The highest estimate placed on the improvements was by appellant, who fixed the value of the buildings at $825, and that of the machinery at $425. If the sum of these items were deducted from the purchase price, $2,800, and the remainder divided by 253 (acres), the average value per acre of the land alone would be more than $6, the value found by the decree of the court. However, according to the preponderance of the evidence, the improvements on the lands are worth greatly less than the figure fixed by appellee as a witness in his own behalf.

If the vendor fraudulently represented the given tract to include other land, land not owned by him, the measure of damages, the result of the misrepresentations as to the area sold, would be the difference between the value of the land actually sold and the value of the lands represented or purported to be sold.

One cannot read this testimony without being impressed that Manning was induced to think he was purchasing, and that he intended to purchase, in the tract pointed out and represented to him by appellee to contain 253 acres, that identical tract of land and number of acres, and not a greatly less acreage, and that this represented acreage was an essential and controlling inducement to the consummation of the purchase by appellant. On the point under discussion this court, in Hodges v. Denny, 86 Ala. 226, 228, 229, 5 So. 492, 494, said:

"*** It has been repeatedly affirmed that when land is described in a bond or deed by well-defined boundaries, such as by its designation according to the government survey, or by natural or artificial metes and bounds, or courses and distances, open to observation, and not subject to mistake, a statement of quantity following the description is regarded as a part of the description, and not of the essence of the contract. By such sale, both parties take upon themselves the risk as to quantity. The purchaser is entitled to all the land included in the tract specifically described, though greater than the quantity stated, and the vendor is not liable if there be a deficiency. In such case, in the absence of fraud, or gross and palpable mistake, or an omission to truly express the contract, parol proof, varying or contradicting the terms of the conveyance, is inadmissible, even in equity. *** A different rule

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