Angrist v. Burk
| Decision Date | 16 November 1915 |
| Docket Number | 2712. |
| Citation | 87 S.E. 74,77 W.Va. 192 |
| Parties | ANGRIST v. BURK. |
| Court | West Virginia Supreme Court |
Submitted September 28, 1915.
Syllabus by the Court.
Though it is necessary, when an instruction embodying an hypothesis dependent upon the finding of a certain fact by the jury has been given for one party, to give another for the opposite party, if requested, stating the converse of the legal proposition, there being evidence tending to sustain both the rule imposes no duty to repeat it in different forms.
The trial court has discretion to refuse an instruction so drawn that it may mislead the jury by an implication unfavorable to one of the parties.
To obtain the benefit of errors in rulings upon evidence admitted or rejected, the complaining party must specify them. The court will not search the transcript of the evidence for them.
Whether an independent investigation by one of the parties to negotiations for a contract of sale of real estate, as to the subject-matter of a false representation made by the other is conclusive evidence of nonreliance upon the misrepresentation, in the closing of the contract, depends upon the nature of the fact in question and the attendant circumstances.
If, in such a case, the parties did not stand upon an equal footing respecting opportunity for knowledge of the truth, and the conduct of the falsifier, in the closing of the contract, was misleading, the question of reliance upon the statement is one for the jury.
Error to Circuit Court, Mercer County.
Action by Sarah Angrist against W. C. Burk. Judgment for plaintiff and defendant brings error. Affirmed.
John R Dillard and French & Easley, all of Bluefield, for plaintiff in error.
Russell S. Ritz and Sanders, Crockett & Kee, all of Bluefield, for defendant in error.
POFFENBARGER P.
On this writ of error to a judgment on an appeal in an action begun in a justice's court and based upon allegations of fraud and deceit in the sale of a certain house and lot, respecting a prospective incumbrance thereon for street paving, the plaintiff in error assigns errors in the ruling s of the court upon instructions and evidence.
The alleged false and fraudulent representation is said to have been made at the inception of the negotiations for the purchase of the property and about three weeks before they eventuated in the final and complete contract. There were two contracts, the first one of which was abrogated because of its failure to provide for interest on the deferred installments of purchase money. In that one, the price agreed upon was $4,700, and, in the other, dated May 28, 1912, $4,500.
Located at the intersection of Princeton avenue and Giles street in the city of Bluefield, the lot abutted two streets. According to the evidence adduced by the plaintiff, both streets had been paved in front of the lot at the time of the beginning of the negotiations, but the paving of the latter was new and had not progressed far beyond the lot. The plaintiff, her husband, and her daughter all say that, while on the lot, attended by the defendant, and contemplating purchase thereof, an inquiry was propounded to him as to whether all the paving charges had been paid, and he replied that they had. Plaintiff says his reply was: The daughter says he was asked whether the street that had just been completed had been paid for, and he replied that it had. The husband says he told them the paving of the streets and sidewalk had been paid for. Witness Phelps says the defendant told him he was going to sell to Angrist "pig in the bag." By consent of parties, the city engineer's statement that the paving of Giles street was commenced April 18, 1912, and had progressed about 600 lineal feet by June 7, 1912, was admitted. The assessment for that paving was made July 22, 1912, nearly two months after the conveyance. The defendant explicitly denies the alleged inquiry as to whether he had paid for the paving on Giles street and his having stated he had paid it, but does not deny the statement imputed to him by Phelps. He admits he was present when the Angrists inspected the property and that he had several conversations with them.
On the occasion of the execution of the deed, the defendant produced receipts for the paving of Princeton avenue and the sidewalk on that street, and an inquiry of the city officers disclosed the existence of an unpaid assessment of $176.14 for the pavement of the sidewalk on Giles street. To cover this charge, the defendant surrendered five of the purchase-money notes in consideration of the plaintiff's assumption of that lien, and on that basis the transaction was closed. The antecedent inquiry made of the city auditor and treasurer did not disclose any assessment for the paving of Giles street, because the assessments for that work had not then been made. As subsequently made against the property in the name of Angrist, the purchaser, July 22, 1912, it amounted to $209.59, and she was compelled to pay it.
As on the settlement no receipt for the street paving or macadam work on Giles street was produced, and all other paving assessments affecting the property were carefully hunted up and provided for,...
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