Boltz v. O'Conner

• Decision Date: 14 January 1910
• Docket Number: No. 6,638.,6,638.
• Citation: 90 N.E. 496,45 Ind.App. 178
• Parties: BOLTZ v. O'CONNER.
• Court: Indiana Appellate Court

45 Ind.App. 178

90 N.E. 496

BOLTZ

v.O'CONNER.

No. 6,638.

Appellate Court of Indiana, Division No. 1.

Jan. 14, 1910.

Appeal from Circuit Court, Carroll County; James P. Wason, Judge.

Action by Thomas W. O'Conner against Henry W. Boltz. Judgment for plaintiff, and defendant appeals. Reversed, with instructions.

Alfred W. Reynolds, Addison K. Silk, George C. Reynolds, and Charles R. Pollard, for appellant. Palmer & Cart and Boyd & Julian, for appellee.

HADLEY, J.

Appellee sued appellant to recover $2,000 on a check given by appellant to appellee, drawn upon the State Bank of Monon, and which check said bank had refused to pay on account of insufficient funds. Appellant answered the complaint in three paragraphs; the first being a general denial, the second fraud in the procurement of the execution of the check, and the third in the nature of a counterclaim, and demanding the cancellation of the check and a contract for the sale of lands executed contemporaneously therewith, upon the ground of fraud in the procurement of the execution of the same. Appellee demurred to each the second and third paragraphs of answer, which demurrers were sustained. Appellant then dismissed the first paragraph of answer, and refused to plead further, and judgment was rendered against him.

The question here presented is upon the rulings of the court on said demurrers. It is averred in the answer and counterclaim that appellee was the owner of certain lands in White county, Ind.; that one Chester Sprague was his agent; that said Sprague, for the purpose of cheating and defrauding appellant, and to induce him to enter into a contract to purchase appellee's said real estate, did then and there falsely represent to appellant “that the soil of said real estate was very productive; that it was rich; that it was a deep, black soil; that it was the richest real estate in White county, Ind., and was of the value of $19,000; that at that time appellant lived about 15 miles from said real estate; that he was not acquainted with said real estate; that he was not acquainted with the soil of said real estate, nor with the soil of the real estate in that locality whether productive or not, whether rich or poor soil, nor of the value thereof; that he had been for some time prior thereto acquainted with the agent of appellee; that, relying upon the statements made by said appellee and his said agent, and believing them to be true, he entered into a written contract with appellee, in which he agreed to purchase said real estate and pay therefor the sum of $19,000; that said check sued on was in part payment of said contract price, and said representations were and are false, and made for the fraudulent purpose of selling said real estate to appellant at an excessive price, and for the purpose of procuring appellant to enter into said contract; that said representations were false in this: That the soil of said real estate was not very productive, and it was not rich; that it was not a deep black, rich soil; that said real estate was not the richest in White county, and was not of the value of $19,000, nor of the value of more than $12,000; that the soil of said real estate was and is poor; that it is sandy, and the sand and gravel come up to near the surface of the ground, all of which appellee well knew at the time said representations were so made by him and his agent. Further facts were averred showing that no possession of the land had been taken, or other property received or rights exercised, under the contract by appellant. It will be observed that the representations which are averred to be false are representations of matters of which the owner is presumed to know the truth, although there is no averment of confidential relations existing between appellant and appellee or his agent. (It is shown that appellant was acquainted with the agent of appellee.) Neither is it averred that appellant was ignorant or in any way deficient in understanding or comprehension, and thereby rendered unequal to the task of protecting his interests against the representations of appellee or his agent. Neither is it averred that appellee knew that appellant was unacquainted with the land, its quality, character, or value, or was unacquainted with the values of land or other property generally, nor that appellee knew that appellant was relying upon him or his agent for information as to these matters. Neither does it aver that appellee or his agent had any special knowledge or were experts as to the value of said real estate; but it is averred that the representations complained of were falsely and fraudulently uttered, for the purpose of deceiving and cheating the appellant, and that the appellee knew that such representations were false when he made them, and that appellant was misled and injured by them.

As a rule, representations as to value are not held to be statements of facts, but are considered expressions of opinion. Culley v. Jones, 164 Ind. 168, 73 N. E. 94;Bolds v. Wood, 9 Ind. App. 657, 36 N. E. 933;Shade v. Creviston et al., 93 Ind. 591;Kennedy v. Richardson et ux., 70 Ind. 524. This is not a hard and fast rule, however. In certain circumstances such representations may be made the grounds of an action, and are called affirmations of fact. Culley v. Jones, supra. The rule by which such expressions should be measured is laid down in Culley v. Jones, supra, by the following from Murray v. Tolman, ...