Angrist v. Burk

• Decision Date: 16 November 1915
• Docket Number: (No. 2712.)
• Citation: 87 S.E. 74,77 W.Va. 192
• Court: West Virginia Supreme Court
• Parties: ANGRIST. v. BURK.

87 S.E. 74

77 W.Va. 192

ANGRIST.

v.BURK.

(No. 2712.)

Supreme Court of Appeals of West Virginia.

Nov. 16, 1915.

(Syllabus by the Court.)

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 rulings 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: "Everything is paid. Before you sign the contract, I will give you a clear title, and we will have no trouble whatever." 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, and it must have been apparent from the report of the city officers that no assessment for the paving of Giles street had been made, there was room for a difference of opinion as to whether the plaintiff relied upon the statement of the defendant, if he made the representation imputed to him. Whether she did or not was a crucial question in the case.

The instruction given at the instance of the plaintiff, told the jury they should find forher, if they believed the representation had been made by the defendant and relied upon by her in the purchase. One of the instructions given for the defendant advised them that, before they could find for her, they must believe it had been made, and that she did not seek outside information as to the truth of the same, but relied solely upon it. The refusal of...