Brown v. Lemay

Decision Date20 November 1911
Citation141 S.W. 759,101 Ark. 95
PartiesBROWN v. LEMAY
CourtArkansas Supreme Court

Appeal from Pulaski Circuit Court, First Division; Robert J. Lea Judge; affirmed.

Judgment affirmed.

Vaughan & Akers, for appellant.

1. When two parties have executed a written instrument which expresses the terms of their contract, neither of them can introduce parol testimony tending to vary, change, add to or subtract from the terms of the written instrument. 94 Ark 130; 88 Ark. 213; 86 Ark. 162, 164; 83 Ark. 163; 80 Ark. 505 508, 509; 67 Ark. 62; 30 Ark. 186, 197.

2. The first instruction of the court ignores an element vital to plaintiff's case, the element of knowledge on the part of the defendant of the falsity of his representations. In an oral instruction the court had told the jury that this is an action for deceit. If it is, then the representations must have been made by the defendant knowing them to be false, or else, not knowing, asserted them to be true, with the intent that plaintiff should act upon them to her injury, and such must have been their effect. 73 Ark. 542, 546, 547. The instruction is further wrong in that it ignores the circumstances of the case as bearing upon plaintiff's right to rely upon defendant's alleged statements as to the quantity of the land. She had, under the circumstances, no such right.

It also excludes from the jury consideration of the question whether plaintiff in selling the land and requiring her vendee to assume the payment of the balance of purchase money due from her to the defendant, did not waive her right to bring this action.

J. H. Harrod, for appellee.

1. This suit was not on the deed, nor instituted nor intended in any manner to affect or change it; but it was for false representations which induced appellee to accept the deed, in other words, an action for deceit in the sale. Parol evidence was admissible to prove the false representations. 38 Ark. 334.

2. The element of knowledge on defendant's part of the falsity of his representations is not a vital element of plaintiff's case, as now contended by appellant, and it does not appear to have been so considered at the trial, since he at no time asked for an instruction telling the jury they must find that the defendant knew his statement was false before plaintiff could recover.

OPINION

FRAUENTHAL, J.

This was an action instituted by a vendee to recover damages for an alleged deficiency in the quantity of land claimed to have been sold to her. It is founded upon the alleged fraud of the vendor in making false representations as to the quantity of the land inducing the vendee to pay the price therefor.

The appellant sold to appellee a tract of land in Pulaski County for $ 3,500, and conveyed same to her by warranty deed. In the deed the land was described as follows:

"The northwest quarter of the northeast quarter of the southwest quarter of section two (2), township one (1) north, range thirteen (13) west, and also all that part of the southeast quarter of the northwest quarter and the northeast quarter of the northeast quarter of the southwest quarter of section two (2), in township one (1) north, range thirteen (13) west, lying south and west of Cunningham Lake, containing twenty (20) acres, more or less, reserving, however, a sufficient space to erect and maintain a fence along said lake so that the lake may be enclosed."

It was alleged that the appellant had sold the land to the appellee at the price of one hundred dollars per acre, and had falsely represented that the land contained thirty-five acres, whereby she was induced to pay $ 3,500 therefor. It was further alleged that the tract contained only 30.9 acres; and by this action she sought to recover the excess in such price paid by her. The case was tried by a jury, who returned a verdict in favor of appellee.

The testimony in behalf of the appellee tended to prove that she resided in the city of Little Rock, a few miles from the land she purchased. The appellant spoke to her relative to selling the land to her. It appears that her father had seen the land, and that she also had looked at it. It was inclosed under a wire fence, and was in one body. The appellant told her that there were thirty-five acres in the tract, and that he would take one hundred dollars per acre therefor, and no less. It appears that the appellee was not familiar with descriptions of land so as to understand therefrom the area thereby represented; and from her observation of the tract did not know the number of acres which it actually contained. Relying upon the representation made by appellant as to the number of acres in the tract, she agreed to pay therefor the sum, at $ 100 per acre, amounting to $ 3,500.

The appellee testified that, at the time the deed was drafted, she told appellant that it did not state that the tract contained 35 acres, and thereupon he told her that the description as set forth in the deed contained that number of acres and sufficiently described that number of acres. She then said to him that she knew nothing about such matters, and that she relied upon his honesty about it. She testified that she accepted the deed, and was induced to pay the price entirely by the representation made by appellant that there were 35 acres in the tract. Shortly after this she contracted to sell the land to a third party, named Walden, who had it surveyed, and it was then that she learned for the first time that the tract only contained 30.9 acres. Thereupon she conveyed the land to her vendee at a reduced price on that account. The testimony tended further to prove that she at once notified appellant of the deficiency in the quantity of the land, and sought to obtain from him the difference in the price by reason thereof. She did not, however, offer to rescind the contract of sale, and gave as a reason that she had in the meanwhile contracted to sell it to said Walden.

The appellant denied that he had represented that there were 35 acres in the tract, and also denied that he had sold the land to appellee at $ 100 per acre or by the acre. He testified that he sold the entire tract in gross to her at $ 3,500.

It is urged by counsel for appellant that the court erred in permitting the introduction of parol testimony as to the representations made by appellant relative to the number of acres in the tract, and that the price agreed upon was at a sum per acre. This contention is made upon the ground that the deed was the written evidence of the contract of sale of the land, and that parol testimony was not admissible to contradict or vary...

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