Culley v. Jones

• Decision Date: 27 January 1905
• Docket Number: No. 20,546.,20,546.
• Citation: 73 N.E. 94,164 Ind. 168
• Parties: CULLEY v. JONES et al.
• Court: Indiana Supreme Court

164 Ind. 168

73 N.E. 94

CULLEY

v.JONES et al.

No. 20,546.

Supreme Court of Indiana.

Jan. 27, 1905.

Appeal from Circuit Court, Posey County; O. M. Welborn, Judge.

Action by William Culley against Ethel B. Jones and another. From a judgment for defendants, plaintiff appeals. Transferred from the Appellate Court under section 1337u, Burns' Ann. St. 1901 (Acts 1901, p. 590, c. 259). Reversed.

G. V. Menzies and H. F. Clements, for appellant. Barker & Zimmerman, and Walter S. Jackson, for appellees.

MONKS, J.

This action was brought by appellant against appellees, who were husband and wife, to recover damages for alleged fraud and deceit in the sale and conveyance by appellant to appellee Ethel B. Jones of 40 acres of land.

The complaint was in three paragraphs. Appellees' demurrer for want of facts was sustained to the first paragraph of complaint, to which appellant excepted. A trial by the court of the issues formed on the second and third paragraphs resulted in a finding and judgment in favor of appellees. The question of law presented by the ruling of the court sustaining appellees' demurrer to the first paragraph of the complaint was reserved for decision on appeal under section 642, Burns' Ann. St. 1901, and said ruling is assigned for error. Appellant, as required by rule 22 of this court, 55 N. E. v. (Schreiber v. Worm, 72 N. E. 852, 853;Chicago, etc., R. Co. v. Walton, 72 N. E. 646), has set out in his brief the material averments of said first paragraph, which are as follows:

“Plaintiff was a married man on the 19th day of October, 1901, and the owner of the forty (40) acres of land described in the first paragraph of the complaint, on which, with his family, he then lived and made his home. That on said date said real estate was worth two thousand dollars ($2,000) cash. That on said date plaintiff and wife were deaf mutes, of feeble intellect, and could only communicate with others by means of the sign language. Plaintiff and wife, by reason of their mental defects and physical infirmities, were incapable of intelligently transacting business of magnitude involving large sums of money. Plaintiff and wife on that date were easily susceptible to the influence, arts, and persuasions of others. Plaintiff and wife were unacquainted with the values of real estate. Plaintiff and wife were unacquainted with the value of the real estate described in the first paragraph of the complaint. That each and all of the foregoing facts were, on the 19th day of October, 1901, known to the defendants, who were husband and wife. That on said date the defendants, corruptly contriving to profit by their fraud and deceit, and intending to cheat and defraud plaintiff, falsely and fraudulently represented to plaintiff, and by means of such false and fraudulent representations caused and induced plaintiff and his wife to believe, and plaintiff and his wife did believe by reason of the said fraudulent representations, that the real estate described was not worth more than fifteen hundred ($1,500) dollars cash. That at the time of making such false and fraudulent representations defendants well knew that said real estate was worth the sum of two thousand ($2,000) dollars cash, and that the same could be sold for that sum in cash. That on said 19th day of October, 1901, defendants, by arts and false representations, as to the true cash value of said real estate, made to plaintiff, and by persuasions and deceptions, and by taking advantage of plaintiff's feebleness of intellect, physical infirmities, and his incapacity to understand the nature and extent of a sale of real estate of that value, and his want of knowledge of the true cash value of the same, and by falsely representing that the fair cash value of said real estate was the sum of fifteen hundred ($1,500) dollars, wrongfully induced and caused plaintiff and his wife to convey to defendant Ethel B. Jones said real estate for the sum of fifteen hundred ($1,500) dollars cash. That plaintiff, on the 19th day of October, 1901, relying upon such false representations, and believing same to be true, and overcome by the deception, persuasions, arts, and importunities of the defendants, executed the deed conveying said real estate. That on the 19th day of October, 1901, the date of said conveyance, plaintiff was ignorant of the value of said real estate, but confided in and believed the false representations made to him by the defendants as to the value of the same, and was induced by the defendants to believe, and did believe, the said false representations made to him by the defendants to be true, that the sum of fifteen hundred ($1,500) dollars was the fair cash value of the said real estate. That the fraudulent representations made by defend ants to the plaintiff were known by the defendants to be false when so made to the plaintiff.”

It is insisted by appellees that representations as to value are but the expressions of opinion, and do not constitute fraud. It is true that false representations, to be actionable on the ground of fraud, must be in regard to material facts, and not the mere expressions of opinions. It is settled that a contracting party may rely on the express statement of an existing fact the truth of which is unknown to him, but which is asserted by the other contracting party as a basis for an agreement. Manley v. Felty, 146 Ind. 194, 198, 45 N. E. 74, and cases cited; Kramer v. Williamson, 135 Ind. 655, 660, 35 N. E. 388, and cases cited; Jones v. Hathaway, 77 Ind. 14, 21. Ordinarily, mere representations as to value are not sufficient to support a charge of fraud. Manley v. Felty, 146 Ind. 198, 45 N. E. 74. Representations of value may be, however, under certain circumstances, affirmations of facts. Simar v. Canaday, 53 N. Y. 298, 306, 13 Am. Rep. 528;Hickey v. Morrell, 102 N. Y. 454, 7 N. E. 321, 55 Am. Rep, 824, 829;People v. Peckens, 153 N. Y. 576, 591, 592, 47 N. E. 883, and cases cited; Murray v. Tolman, 162 Ill. 417, 44 N. E. 748; Haygarth v. Wearing, L. R. 12 Eq. 320, 327, 328; Manley v. Felty, 146 Ind. 194, 198, 199, 45 N. E. 74, and cases cited; 14 Am. & Eng. Enc. of Law (2d Ed.) 36, 37; Pomeroy's Equity Jur. §§ 878-880, and notes; Bigelow on Fraud, pp. 475, 496.

Whether such representations as to value are merely the expressions of an opinion, or affirmations of facts to be relied upon, is a question of fact to be determined by the jury. Simar v. Canaday, 53 N. Y. 307, 13 Am. Rep. 528;People v. Peckens, 153 N. Y. 591, 47 N. E. 883;Ingalls v. Miller, 121 Ind. 188, 191, 28 N. E. 995; 14 Am. & Eng. Ency. of Law (2d Ed.) pp. 35, 206.

It was said by the court in Simar v. Canaday, 53 N. Y. 306, 307, 13 Am. Rep. 523. “The defendant contends that the representations alleged to have been made by the defendant were not such as to afford a ground for an action. It is first insisted that the statements as to the value of the lands and the mortgages thereon were mere matter of opinion and belief, and that no action can be maintained upon them if false. If they were such, no liability is created by the utterance of them; but all statements as to the value of property sold are not such. They may be, under certain circumstances, affirmations of facts. When known to the utterer to be untrue, if made with the intention of misleading the vendee, if he does rely upon them and is misled to his injury, they avoid the contract. Stebbins v. Eddy, 4 Mason, 414-423 [Fed. Cas. No. 13,342]. And where they are fraudulently made of particulars in relation to the estate which the vendee has not equal means of knowing, and where he is induced to forbear inquiries which he would otherwise have made, and damage ensues, the party guilty of the fraud will be liable for the damages sustained. Medbury v. Watson, 6 Metc. 246 , per Hubbard, J. And see McClellan v. Scott, 24 Wis. 81. *** Whether a representation as to the value is merely an expression of opinion or belief, or an affirmation of a fact to be relied upon, is a question for the jury.”

In Hickey v. Morrell, 102 N. Y. 463...