Allan v. Wescott

• Decision Date: 09 September 1916
• Parties: ALLAN v. WESCOTT.
• Court: Maine Supreme Court

98 A. 630

ALLAN

v. WESCOTT.

Supreme Judicial Court of Maine.

Sept. 9, 1916.

Exceptions from Supreme Judicial Court, Somerset County, at Law.

Action for deceit by John Slack Allan against Elmer F. Wescott. Verdict for plaintiff and defendant moves for a new trial and excepts. Motion and exceptions overruled.

Argued before SAVAGE, C. J., and CORNISH, KING, BIRD, and HALEY, JJ.

Butler & Butler, of Skowhegan, for plaintiff. Fred F. Lawrence, of Skowhegan, for defendant.

SAVAGE, C. J. Action for deceit in the sale of a farm, by misrepresenting the acreage. The plaintiff recovered a verdict, and the case comes up on the defendant's motion for a new trial and exceptions.

The Motion. The evidence is conflicting. But we think a jury would be warranted by it in finding the following statement of facts to be true. The defendant owned a farm containing about 60 acres. It was crossed by what is called in the case "an old state road." About 44 acres lay east of the road, and about 16 acres, west. The plaintiff learned through a farm agency that the farm was for sale. He was shown over a part of it by the defendant. The easterly, northerly, and southerly boundaries were pointed out. The parties did not go to the westerly end of the farm, but the defendant represented to the plaintiff in effect that the farm contained 75 or 80 acres. The plaintiff concluded to purchase. He paid $50 down, and took the defendant's receipt for $50, "paid on account of a farm of 80 acres, more or less." In the afternoon of the same day the trade was completed. The defendant gave the plaintiff a bond for a deed, and the plaintiff paid $300 more, and obligated himself to pay the balance of the purchase price in installments. The installments have been paid so far as they have become due. In the bond for a deed the farm was described as bounded on the west "by the old state road," so that the tract described in the bond contained only about 44 acres. The plaintiff did not know of the existence of any "old state road" until the bond was drawn, and even then did not know where it lay upon the face of the earth. The representation or the defendant as to acreage was made as of a matter of fact within his knowledge, and not as a matter of opinion. The representation was relied upon by the plaintiff. It was false, and was known to be so by the defendant. It was false if applied to the whole of the defendant's farm. It was false if it related only to the territory included in the bond. And it is on the latter ground that the suit is sought to be maintained, as the declaration in the writ shows.

It is true that the defendant denies that the foregoing statement is true, but the evidence offered by the plaintiff tends to show that it is true. And the jury were warranted in believing it. We must therefore consider the motion upon the assumption that it is true. Upon that assumption, the facts make a clear case for the plaintiff. It was incumbent upon the plaintiff to show that the defendant intentionally made the false representation to him, with the intent that he should act upon it, or in such a manner as would naturally induce him to act upon it; that the representation was material, and that it was known to the defendant to be false, or, being of matter susceptible of knowledge, was made as of a fact of his own knowledge; that the plaintiff was thereby induced to act upon it; and that he was deceived and damaged. Atlas Shoe Co. v. Bechard, 102 Me. 197, 66 Atl. 390, 10 L. R. A. (N. S.) 245; Banking Co. v. Cunningham, 103 Me. 455, 70 Atl. 17, 15 L. R. A. (N. S.) 952, 13 Ann. Cas. 631; Hotchkiss v. Coal & Iron Co., 108 Me. 34, 78 Atl. 1108; Pierce v. Cole, 110 Me. 134, 85 Atl. 567. The representation was intentional and material, and was made as of a fact of the defendant's knowledge, as an inducement to purchase. The plaintiff was thereby induced to purchase. Not knowing the location of the old state road, the plaintiff was justified in believing, as he claims he did, that the farm described in the bond contained at least 75 or 80 acres. He was deceived and damaged. The motion must be overruled.

The Exceptions. The bill of exceptions does not require our consideration. The only statement of the case in the bill is this:

"This was an action on the case to recover damages for alleged deceit in the sale of a farm. The presiding justice in the course of his charge, referring to a certain receipt which the plaintiff testified was signed by the defendant in acknowledgment of a $50 payment, instructed the jury, among other things, as follows [stating the instruction]. At the conclusion of the charge, counsel for the defendant requested the following instructions [stating them]."

The bill does not state enough of ...