Buford v. Caldwell
| Decision Date | 31 August 1834 |
| Citation | 3 Mo. 477 |
| Parties | BUFORD v. CALDWELL. |
| Court | Missouri Supreme Court |
WRIT OF ERROR TO THE CIRCUIT COURT OF RALLS COUNTY.
This was an action on the case brought by Buford v. Caldwell in the Circuit Court, to recover damages for certain misrepresentations made by the defendant to the plaintiff, in the sale of a tract of land. The defendant demurred to the plaintiff's declaration, and had judgment; to reverse which Buford has come with his writ of error into this court.
The declaration charges “that in a conversation made and had concerning the sale of the tract of land, the defendant showed to the plaintiff a certain dwelling house, and other buildings, and certain improved lands, amounting to about eighty acres, and represented to the plaintiff that the same were situate upon and within the boundaries of said tract of land;” “that, by the representations so made, he was induced to make the purchase of the defendant; that said representations were false and fraudulent; and that the said dwelling house and eighty acres of improved land so shown and represented to be within the true boundary of the tract, are without the boundary of the tract so sold by the defendant to the plaintiff, and upon lands belonging to the Government of the United States,” &c., &c. For the defendant two points have been raised: First. It is insisted that the plaintiff's declaration is defective, in not charging that the representations were made falsely and fraudulently by the defendant, knowing them to be untrue. Second. That an innocent misrepresentation, or one founded in ignorance and mistake, is no ground for relief at law or in equity.
In support of these positions the counsel for the defendant have cited 1 Chit. Pl. 133 and 376; Tucker's Notos on Blackstone, vol. 3, p. 154; 2 Starkie Ev. 467. 469, 471 and 472; B. N. P. 31 and 4; Taunt. 779.
For the plaintiff in error it is contended, First. That the scienter need not be alleged in a case like the present, and if alleged, need not be proved. Second. That it has been sufficiently alleged in charging the representations to have been made falsely and fraudulently.
In support of the first position taken by the plaintiff's counsel, they have cited Saund. on Ev., 2 vol. p. 28; Dougl. 91; 4 Camp. 22; 2 East. 446; 4 Bing. 66; and 1 Marsh. 192 and 496.
On the second point they have cited 2 Saund. Ev. 527; Willes, 584; and Rev. Code, 626. There are some conflicting authorities cited by counsel on both sides, as to the cases in which a scienter must be averred, which we shall not attompt now to weigh or to reconcile; the declaration in this case, though carelessly and inartificially drawn, sufficiently alleges, as we think, the fraud and the damage done to the plaintiff thereby.
To charge that a representation was falsely and fraudulently made, seems to us a substantial charge that the defendant knew it to be untrue. The authority from Willes, 584, is in point. It may reasonably be presumed that Caldwell, before he built his...
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