Adkins v. Stewart

• Decision Date: 26 May 1914
• Citation: 166 S.W. 984,159 Ky. 218
• Parties: ADKINS v. STEWART.
• Court: Kentucky Court of Appeals

166 S.W. 984

159 Ky. 218

ADKINS v. STEWART.

Court of Appeals of Kentucky.

May 26, 1914

Appeal from Circuit Court, Boyd County.

Action by Oscar Stewart against S. G. Adkins. From a judgment for plaintiff, defendant appeals. Affirmed.

S. S Willis, of Ashland, for appellant.

J. F Stewart, of Ashland, for appellee.

HANNAH J.

Oscar Stewart sued S. G. Adkins in the police court of Ashland to recover $50 upon two notes. The defendant answered, alleging that Stewart had induced the execution of the notes sued on by fraud and misrepresentation in the sale by plaintiff to defendant of a lot of household furniture, in part payment for which the notes were given.

By a second paragraph of his answer, Adkins, the defendant, set up a counterclaim of $72, based upon an alleged breach of warranty in the sale of the household furniture mentioned alleging that he had paid plaintiff therefor the sum of $132 whereas the furniture was not worth to exceed $60.

By a third paragraph, the defendant alleged that he purchased a tract of land from plaintiff, containing eight acres, for which he paid plaintiff $1,100; that plaintiff knew he purchased it for the purpose of tilling it; that there was an acre and a half of the land which had been overflowed by poisonous waters from coal mines, thereby destroying its fertility, so that it would not produce crops at the time of defendant's purchase of the farm; and that plaintiff fraudulently concealed this condition from defendant; that such condition was not discoverable by an ordinary inspection; and that, by such fraudulent concealment, plaintiff had damaged defendant in the sum of $250.

Upon the filing of this answer and counterclaim, the case was transferred to the Boyd circuit court; and, upon a trial in that court, there was a peremptory instruction to the jury to find a verdict for the plaintiff. Defendant appeals.

It is conceded that, as to the counterclaim contained in the second paragraph of the answer, the ruling of the lower court was correct; but appellant contends that the court erred in withdrawing from the jury the claim for damages for fraudulent concealment in the sale of the land, as set up in the third paragraph of the answer.

Defendant testified that when he went to examine the land he noticed that some low ground was fenced up separately, and that he asked plaintiff what he had that fence there for, and that plaintiff replied that he had planted that part in corn, but that the water in the creek had overflowed the land and drowned out the corn, so he then fenced that part of the land to keep his cow in, and to keep her out of the orchard.

Defendant further testified that after his purchase of the land from plaintiff he plowed up that part referred to, and planted it in corn; that the corn came up about "finger length high," and then perished away. He then sowed it in millet, and that it likewise perished away; and that he had never been able to produce anything on that acre and a half.

A witness for defendant testified that, before he sold the land to defendant, plaintiff planted that part of the land in corn, but the crop failed, and that he then fenced it up. Another witness for defendant testified that the acre and a half mentioned would not produce anything when plaintiff owned it, but he does not say what Stewart tried to produce on it.

Defendant contends upon this evidence the court erred in peremptorily instructing the jury to find for plaintiff.

"According to the weight of authority, the rule of caveat emptor applies to sales of land; and the purchaser, under ordinary circumstances, is required to use reasonable prudence to avoid deception. Thus, where the subject-matter of the representation is a fact not peculiarly within the vendor's knowledge, but is one as to which the purchaser has equal and available means and opportunity for information, and there are no confidential relations existing between the two, and no fraud or artifice is used to prevent inquiry or investigation, it is a general rule that the purchaser must make use of his means of knowledge, and that, failing to do so, he cannot recover on the ground that he was misled by the vendor." 20 Cyc. 50.

"But the rule of caveat emptor does not apply where the fact in question is...