Bourn v. Davis

• Decision Date: 03 June 1884
• Citation: 76 Me. 223
• Parties: CALVINA A. BOURN v. JOHN L. DAVIS AND WIFE.
• Court: Maine Supreme Court

76 Me. 223

CALVINA A. BOURN v. JOHN L. DAVIS AND WIFE.

Supreme Judicial Court of Maine.

June 3, 1884

ON exceptions from superior court.

The case and material facts are sufficiently stated in the opinion.

John H. Potter and George J. Moody, for the plaintiff, upon the question considered in the opinion as to the allegation and proof of a false statement by defendants as to the value at which his property had been appraised argued:

We submit that this allegation was material, that it was the misstatement of a fact given to and understood by the plaintiff as a fact, as an official act performed by three men appointed by a court of record and under their solemn oaths. These men were selected from the neighborhood where the estate lies, they were disinterested, they were commissioned by the judge of probate, they were under oath and made a record of their doings on the very commission under which they acted and returned the same to the court whence it issued. The appraisal, the value of that estate was now no longer a matter of opinion, but had become a fixed fact, the estate had now received a fixed and legal value. By that appraisal the value of the claims of creditors were ascertained, the character of the estate whether solvent or insolvent was determined, and by it the administrator must be governed.

The value was ascertained by the court of probate, although done by persons appointed thereby. It is now no more the expression of an opinion than is the undisturbed verdict of a jury, or the decision by one of your honors on a question of fact.

But this representation was a representation of the act of third parties and therefore is not an expression of opinion but the statement of a fact, and if false then fraudulent. Manning v. Albee, 11 Allen 520; Belcher v. Costello, 122 Mass. 189.

Therefore we submit, that it was the representation of a material fact, and being false it was fraudulent. And what could more influence a person than such a representation?

But it may be urged that this being a matter of record was open to the examination and inspection of the plaintiff, and that she by due diligence might have ascertained the truth. But these questions were submitted to the jury, and they were repeatedly instructed that these questions they must decide, and as there is no evidence that they assessed any damage on account of this representation, we have a right to assume that they determined this question of fact, and if they found that she had not used due diligence in regard to the same, they entirely disregarded it.

Bean and Beane, for the defendants, cited: Holbrook v. Connor, 60 Me. 578; Bishop v. Small, 63 Me. 12; Long v. Woodman, 58 Me. 49; Medbury v. Watson, 6 Met. 246; Hemmer v. Cooper, 8 Allen 334; Manning v. Albee, 11 Allen 520; Cooper v. Lovering, 106 Mass. 79; Add. Torts, 1017.

SYMONDS J.

Case for deceit alleged to have been practised by the defendants in effecting an exchange of real estate with the plaintiff.

One of the allegations of fraud relied upon at the trial was that the defendants said the place in Belfast, which they exchanged with the plaintiff for her farm in Fayette, was valued by the appraisers upon the estate of Lydia A. Hollis, mother of the defendant, Grace U. Davis, at one thousand dollars, when in fact the appraisal was only two hundred and twenty-five dollars.

In this respect the jury were directed by the presiding judge that if the defendants stated " as a matter of fact, that the appraisal had been made by the official appraisers under their oaths in performing their official duty under the laws of this state and that statement was false (and there is no dispute, I believe, about the fact that the appraisal was two hundred and twenty-five dollars instead of one thousand dollars), and was known by them to be false at the time, and was made for the purpose of deceiving the plaintiff and as an inducement to her to make the exchange, and she did rely upon it and was thereby induced to make the exchange," it was a fraudulent misrepresentation which would give the plaintiff a right of action to recover the damages which she sustained thereby. The ruling appears to have been a pro forma one, and, the verdict being for the plaintiff, the question of its correctness is reserved upon exceptions by the defendants.

It is the general rule at least in Massachusetts and Maine that an action of tort for deceit in the sale of property does not lie for false and fraudulent representations by the vendor to the vendee concerning its cost or value, or the prices which have been offered or paid for it. Long v. Woodman, 58 Me. 52; Holbrook v. Connor, 60 Me. 578; Martin v. Jordan, 60 Me. 531; Bishop v Small, 63 Me. 12. " When a vendor of real estate affirms to the vendee that his estate is worth so much, that he gave so much for it, that he has been offered so much for it, or has refused such a sum for it, such assertions, though known by him to be false, and though uttered with a view to deceive, are not actionable." Medbury v. Watson, 6 Met. 259; Gordon v. Parmelee, 2 Allen 212; Hemmer v. Cooper, 8 Allen 334; Mooney v. Miller, 102 Mass. 220; Cooper v. Lovering, 106 Mass. 78; Parker v. Moulton, 114 Mass....