Averill v. Boyer

• Decision Date: 28 September 1915
• Docket Number: 2714.
• Citation: 87 S.E. 259,76 W.Va. 642
• Parties: AVERILL v. BOYER.
• Court: West Virginia Supreme Court

87 S.E. 259

76 W.Va. 642

AVERILL v. BOYER.

No. 2714.

Supreme Court of Appeals of West Virginia.

September 28, 1915

Submitted September 7, 1915.

Rehearing Denied Dec. 17, 1915.

Syllabus by the Court.

Where the ad damnum clause prescribes a true and false measure of damages, the latter will be treated as surplusage.

In an action for fraud and deceit practiced in the exchange of real estate consummated by deeds, evidence of preliminary negotiations is admissible to show the inducement for such exchange, though the agreement therefor is verbal.

In such action, the measure of damages is the difference in values between the lot as represented and as fraudulently conveyed by the deed delivered; plaintiff not electing to rescind.

Error to Circuit Court, Kanawha County.

Action by Mary J. Averill against Lula D. Boyer. Judgment for plaintiff, and defendant brings error. Affirmed.

J. W Kennedy and Murray Briggs, both of Charleston, for plaintiff in error.

Linn & Byrne, of Charleston, for defendant in error.

LYNCH, J.

Plaintiff and defendant, severally owning real estate in Kanawha county, began negotiations in August, 1906, for an exchange of properties--Mrs. Averill's being a tract of 63 acres located along the Kanawha river above Charleston; Mrs Boyer's consisting of lots in Charleston, one of them fronting on Morris street near its junction with Baines street. The negotiations were finally consummated by an exchange of deeds May 25, 1907. Claiming defendant fraudulently and deceitfully included in her deed part only of the Morris street lot, though pretending to convey all of it pursuant to the final agreement, plaintiff brought trespass on the case for damages, and recovered a verdict and judgment for $1,136. This judgment defendant asks us to reverse on writ of error, for various reasons assigned by her.

The first assignment relates to the court's action on the demurrer of defendant, whereby she challenged the sufficiency of the declaration. Stating in detail, as it does, the different parleys had by the parties or their representatives, culminating in the final agreement, and describing the Morris street lot as "fronting 40 feet on Morris street, running back by parallel lines a distance of about 115 feet, and known as the Hewes lot," and compliance by plaintiff by the execution and delivery of her deed and acceptance of the same by defendant, together with possession of the land conveyed, the declaration then charges that:

"Defendant professing to be acting in good faith and carrying out the agreement aforesaid on her part as modified as aforesaid, and to be conveying the whole of the property on Morris street which she had so agreed to convey, executed and acknowledged in due form by herself and her husband and delivered to the plaintiff two deeds, each dated February 26, 1907, one conveying to the plaintiff the aforesaid lot on Caroline street, and the other conveying a part of the said lot on Morris street, to wit, 40 feet fronting on Morris street and running back by parallel lines 80 feet, leaving out of the said conveyance, as she (the defendant) well knew, a part of the said Morris street lot at the rear thereof, to wit, 40 feet by 35 feet. The said defendant, then and there falsely and deceitfully contriving and intending to deceive and impose upon the plaintiff, and to cause her to believe that the said last-named deed conveyed to her the whole of the said Morris street lot, then and there falsely and deceitfully and fraudulently represented to the plaintiff that the said last-named deed conveyed the said Morris street lot, according to the boundaries thereof first herein above set forth; and, so believing and being thus imposed upon, the plaintiff was induced to accept, and did accept, the said two deeds, and cause the same to be admitted to record, and that she was at the time, and for a long time thereafter, to wit, till the ______ day of ______, 1908, wholly ignorant of the fact that she had been deceived and defrauded as aforesaid."

Though in other particulars the declaration is charged to be insufficient, the only objection argued and apparently deemed material relates to the ad damnum clause, whereby plaintiff avers that:

"By reason of the premises she has been fraudulently deprived of the rear end aforesaid of the said Morris street lot, of great value, to wit, of the value of $2,500, and has sustained great damage, to wit, $2,500, and therefore she sues."

The criticism directed by defendant against this clause of the declaration is that it prescribes a fallacious measure of damages, in that the damages are based on a comparison of the value of the part of the lot conveyed by the deed with the value of the lot if it had been conveyed as represented. But whether the declaration is demurrable because it prescribes an erroneous admeasurement of damages need not now be determined; for, while it charged deprivation of the rear end of the lot, of great value, it also charged that, by reason of the fraud and deceit practiced by defendant, plaintiff has sustained great damage, wherefore she sues. So that, if the clause prescribed two inconsistent standards for the computation of damages, one correct, the other fallacious, the latter properly may be treated as surplusage. The demurrer was therefore properly overruled.

By the second assignment defendant presents for consideration a challenge of all the evidence introduced by plaintiff, on the theory that, as the declaration limited the fraud and deceit practiced by defendant to the actual exchange of deeds, proofs of parleys pending the preliminary negotiations should not have been admitted over objection by defendant, and, being so admitted, ought to have been excluded upon her motion, duly made and denied. This objection vitally affects the very foundation on which rests the judgment rendered in this case, and finds support, if any, on the averments in the declaration already quoted at length, which, according to defendant's construction, limit the fraud and deceit charged, if any, to the moment the deeds were interchanged. This contention, however, ignores allegations of preceding negotiations between the parties culminating in and consummated by such exchange. The gist of the complaint was that, although defendant represented the dimensions of the Morris street lot as 40 by 115 feet, and agreed to convey to plaintiff a lot having these dimensions, she thereafter, fraudulently contriving and intending to deceive the plaintiff and to cause her to believe the deed conveyed the whole of said lot according to the boundaries averred, falsely represented that the conveyance did include the lot according to such boundaries, and, so believing and being thus imposed upon, plaintiff was induced to accept the deed. The sanction of an argument limiting proof to the final stage or conclusion of a fraudulent transaction, regardless of the previous negotiations of which that transaction was the fruition, would operate as an elimination of the substance and the substitution in its stead of a mere shadow. Properly construed, the declaration authorized proof of the transaction from the inception to the final consummation of it.

Nor is there more merit in the further contention that, as the transaction involved real estate, the contract, being verbal and therefore void under the statute of frauds, cannot be made the basis of a recovery in this action. This contention effectually would operate as a denial of the right to demand damages after the execution and delivery of the deed, however fraudulent and deceitful may have been the preceding negotiations, if verbal, though such deed effectuates the fraud practiced by either party upon the other. The mere statement of the argument refutes it. Surely such is not the...