Cerriglio v. Pettit

• Decision Date: 13 June 1912
• Citation: 75 S.E. 303,113 Va. 533
• Parties: CERRIGLIO . v. PETTIT.
• Court: Virginia Supreme Court

75 S.E. 303

(113 Va. 533)

CERRIGLIO .

v.PETTIT.

Supreme Court of Appeals of Virginia.

June 13, 1912.

1. Fraud (§ 65^*) — Action — Instructions — Representations as to Value.

While plaintiff's requested instruction, in an action for deceit in the exchange of properties, that if representations were made by de fendant as to the value of his property, what it was renting for and would rent for, and that loans could be secured on it, and these were relied on by plaintiff, and were material, and without them plaintiff could not conclude the transaction, and they were untrue to the knowledge of defendant, plaintiff was entitled to recover, was too broad, and so properly modified by a proviso that, before they could find for plaintiff, the jury must find said statements were made as facts, not opinions of defendant, the proviso would have been clearer and less calculated to deceive, had it warned the jury against reckless statements of fact, made in disregard of whether they were true or false.

[Ed. Note.—For other cases, see Fraud, Cent. Dig. §§ 72-74; Dec. Dig. § 65.*]

2. Fraud (§ 65*) — Action —Instructions — Reliance on Misrepresentations.

Plaintiff, in an action for deceit in exchange of properties, is entitled to an instruction that, if the jury believe plaintiff had not equal means of information with defendant in relation to his property, and, knowing this, defendant made representations as to its value, what it rented for, and what amount of loan could be procured on it, then, if defendant asserts that plaintiff did not rely on such representations, the evidence that he did not must be of the clearest and most satisfactory character, and not of mere inferences or implication.

[Ed. Note.—For other cases, see Fraud, Cent. Dig. §§ 72-74; Dec. Dig. § 65.*]

3. Principal and Agent (§ 158*)—Representations—Effect as to Principal.

The agent of plaintiff, in an exchange of properties with defendant, having also, without plaintiff's knowledge, been defendant's agent, representations made by the agent to plaintiff, during the negotiations, with regard to defendant's property, were binding on defendant as if made by him, though the agent made them honestly, having been deceived by defendant.

[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 589-598; Dec. Dig. § 158.*]

4. Fraud (§ 65*)—Action—Instructions.

The instruction, in an action for deceit in exchange of properties, that mere assertions by vendors as to value of their property, or the price that has been offered for it, are assumed to be so commonly made that purchasers cannot rely on them, and are not fraudulent, but are considered as "trade talk, " is objectionable, as not drawing the distinction between a mere opinion as to value of property and a vendor's statement of fact as to what he has been offered for it.

[Ed. Note.—For other cases, see Fraud, Cent. Dig. §§ 72-74; Dec. Dig. § 65.*]

5. Trial ($ 244*)—Instructions—Singling out Facts.

Defendant's instruction, in an action for deceit in exchange of properties, was erroneous in laying stress on the fact that persons, applied to by plaintiff, during the negotiations, for a second loan of $3,000 on defendant's property, refused it on the ground of inadequate security, and leaving out of view defendant's subsequent reiteration of the value of his property, and his arranging such a loan, ostensibly from another, but in fact with his own money, as a further assurance that the estimate by the persons applied to by plaintiff of the value of the property was unreliable.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. § 244.*]

6. Appeal and Error (§ 1050*)—Prejudicial Error—Admission of Evidence.

Admitting evidence, in an action for defendant's fraudulent representations, in an ex-change of properties, as to the value of his property, of a third person having been tricked into making an excessive loan on plaintiff's property, prior to plaintiff's acquisition of it, could have served no other purpose than to mislead the jury to a consideration of an irrelevant matter.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. 88 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.^2-*]

7. Fraud (§ 38*)—Action—Time.

Plaintiffs bringing of his action for deceit in exchange of properties was not too long delayed, with the result of estoppel or waiver; he not having had occasion to visit the property he got from defendant till several months after the exchange, when he desired to make a new loan on it, and re-rent it, and then, after a few months for finding out what redress he had, having brought the action.

[EM. Note.—For other cases, see Fraud, Cent. Dig. § 34; Dec. Dig. § 38.*]

Error to Circuit Court, Fairfax County.

Action by Antonio Cerriglio against R. M. Pettit. Judgment for defendant. Plaintiff brings error. Reversed, and remanded for new trial.

Chas. Poe, C. V. Ford, and Moore, Barbour & Keitb, for plaintiff in error.

C. E. Nicol, for defendant in error.

CARDWELD, J. This action was brought by Antonio Cerriglio to recover damages resulting from fraud and deceit, alleged to have been practiced upon him by the defendant, R. M. Pettit, in an exchange of properties made between them on the 7th day of January, 1909.

At a trial of the cause there was a verdict and judgment for the defendant, which judgment we are asked to review and reverse: (1) Because of misdirection of the jury by instructions given, and for error in refusing other instructions asked for by the plaintiff; (2) for error in allowing certain improper and irrelevant evidence to be submitted to the jury; and (3) because the verdict is contrary to the law and the evidence.

The material facts which the evidence proved, or tended to prove, and which have to be considered in connection with the assignments of error with respect to the court's rulings in giving and refusing instructions, are as follows: Cerriglio owned a farm in Fairfax county, Va., containing 804 acres, with extensive and costly buildings thereon, known as "Hayfield, " situated about 6 miles from Alexandria city and 14 miles from Washington, D. C, which points are accessible by good roads, and also about 2 miles distant from Franconia station on the Richmond, Fredericksburg & Potomac Railroad. Upon the Hayfield farm there was a large quantity of valuable personal property, the larger part of which belonged to the foreman on the place, named Thompson; but the personalty owned by Thompson was purchased by Cerriglio and was included in the exchange. Pettit was the owner of a lot in the city of Pittsburgh, Pa., with a dwelling and other improvements thereon, known as "1238 Fayette Street."

Cerriglio and Pettit were brought together through real estate agents in the city of Washington, D. C, and the exchange of their respective properties was there consummated. Pettit was represented by the real estate firm of Ballard & Lanham Company, and Cerriglio by Frank A. Harrison; but, as we shall later see, there is proof in the record going to show that Harrison, at the time of the negotiations and the closing of the deal between said contracting parties, was also in the employ and pay of Pettit, without the knowledge of Cerriglio.

Hayfield, at the time of the exchange, was incumbered by a deed of trust securing a balance of $28,500, due to one Thomas Cover, of Winchester, Va., on a loan of $32,-000 to Cerriglio's predecessor in ownership, which Cerriglio assumed as part payment of his purchase of the property, but which he had reduced by payments to said sum of $2S, 500; and the real estate of Pettit, at the time of the exchange, was subject to a mortgage amounting to $S, 000. The personal property on Hayfield was transferred by Cerriglio to Pettit free of incumbrance, and consisted in part of property owned by the foreman on the Hayfield farm, which Cerriglio had purchased in order to carry out the agreement of exchange; the agreement providing that the farm should be delivered to Pettit, together with all personal property thereon, with certain minor exceptions. There was evidence tending strongly to prove that in the negotiations leading up to said exchange Pettit and his agents represented to Cerriglio that the Pittsburgh property was worth $35,000; that it had a loan value of $16,000—1. e., that the latter amount could be borrowed upon it—and that it had a rental value of $125 per month; in fact, the initial contract of exchange provided that Cerriglio should have a tenant paying a rental for the Pittsburgh property of $125 per month until April 1, 1909, while the truth was that Pettit was agreeing to pay that rent for the property himself for the time named, as an inducement to Cerriglio to agree to the exchange being consummated, and that, too, in face of the uncontroverted facts that the Pittsburgh property had not at that time, nor down to the institution of this suit, a rental value of over $55 per month.

At the date of the initial agreement between these parties, December 19, 1908, Cerriglio had never been to Pittsburgh, and knew nothing of values there. After this agreement had been signed, however, and before deeds were exchanged, Cerriglio went to Pittsburgh, spending a few hours there, but was with Pettit the entire time, and made no inquiry of others as to the value ofthe Pittsburgh property. While these parties were together on that occasion, Pettit reiterated his assurances as to the sale value, loan value, and rental value of the property, and these representations were given additional force and credit in the estimation of Cerriglio, doubtless, by the handsome and attractive appearance of the buildings, but not a word was spoken to him to put him on notice that values in Pittsburgh in that locality had entirely changed in late years; the result being a very great deterioration in both the salable and rental values of properties there, a fact well known to Pettit. The property here in question, which had perhaps been worth, many years prior, the...