Dunn v. White

Decision Date31 October 1876
PartiesMILTON DUNN, Defendant in Error, v. RICHARD WHITE, ADM'R OF J. Q. OLDHAM, DEC'D, Plaintiff in Error.
CourtMissouri Supreme Court

WAGNER, Judge, delivered the opinion of the court.

This was an action to recover damages for an alleged false and fraudulent representation in the sale of a tract of land. It appears that the defendant was the owner of an eighty acre tract, which he had bought only about a month previous to the sale to the plaintiff, and that pending negotiations for a sale both parties went upon the land, and the defendant showed the plaintiff the boundaries. A sale was consummated; the plaintiff paid the purchase money and received a conveyance and went into possession of the premises. Subsequently he ascertained that the boundaries pointed out to him by the defendant were not the correct ones, and thereupon he brought this suit for damages. The evidence shows very clearly that there was no actual fraud or intentional misrepresentation upon the part of the defendant; and that he was innocently mistaken as to the accurate location of the true lines and corners. Under the instructions of the court there was a verdict for the plaintiff, upon which judgment was rendered and the defendant sued out his writ of error. The action of the court in giving and refusing instructions constitutes the only error complained of.

The first declaration given for the plaintiff was in substance, that if the jury believed from the evidence that the plaintiff was ignorant of the corners and boundaries of the land, and that defendant, knowing that the plaintiff was so ignorant, pretended and assumed to know the corners and boundaries, and pretended and assumed to show the same to plaintiff, but did not in fact do so, but showed him the wrong corners and boundaries with a view to induce him to purchase, and the plaintiff in consequence thereof believed and was induced to believe that the corners and boundaries shown him were the correct and true ones, and that the land conveyed was worth less than that shown him, then the verdict should be for the plaintiff.

The second instruction told the jury that, although they might believe from the evidence that the defendant was laboring under a mistake as to the corners and boundaries of the land conveyed and really believed the land shown by him was the land conveyed, yet if they found that plaintiff believed and relied upon the representations of defendant and sustained injury thereby, then the defendant was liable, provided he knew that plaintiff was ignorant of the corners and relied on his representations, and that defendant made the representations unqualifiedly, with a view to induce plaintiff to make the purchase.

The court of its own motion gave an instruction that if the jury found that the defendant while showing the plaintiff the land with a view of sale, unqualifiedly represented the corners, without knowing whether they were the correct ones or not, for the purpose of inducing the plaintiff to make the purchase, knowing that plaintiff relied upon him for correct information, and that the representations were untrue, then such false representations amounted in law to fraud, and entitled the plaintiff to recover the damages sustained thereby.

The material parts of the defendant's instructions asserted the proposition that plaintiff could not recover unless the jury found from the evidence that the defendant made the representations knowing them to be false, and intended to deceive the plaintiff as to the true location of the boundaries. These instructions the court refused to give.

Where the parties are mutually mistaken in reference to some material question respecting the land, or where the vendee, in making the purchase, reposes especial confidence in the vendor and relies on his false representations, a court of equity, on proper application, will rescind the sale. In case of mistake the question of fraud is not generally important, as the vendee does not get what he contracted for, and by delivering up or offering to reconvey what he has obtained, but what in fact he did not purchase, a rescission will be decreed. But where there is no offer to return or rescind, and equitable relief is not demanded, but the purchaser seeks to recover damages in an action at law on the allegation of fraud, the scienter then becomes the very gist of the proceeding and must be proved. There is no doubt that in most cases in which an action in the nature of a writ of deceit would lie at law, equity would lend its jurisdiction to rescind the contract, but the converse of this rule is by no means universally true, for the heads of fraud and mistake are both in courts of law and equity as distinct as those of tort and contract. An innocent misrepresentation by mistake cannot be made the ground of a personal action for fraud, however it may operate upon the contract itself. It may annul the contract, on the ground that a substantial error between the parties concerning the subject matter of the contract destroys the consent necessary to its validity. The now generally recognized doctrine is,...

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138 cases
  • Denny v. Guyton, 28922.
    • United States
    • Missouri Supreme Court
    • 27 Mayo 1931
    ...duty as acts of commission, i.e. false representations. Hamlin v. Abell, 120 Mo. 188; Pomeroy v. Benton, 57 Mo. 531, 77 Mo. 64; Dunn v. Oldham's Admr., 63 Mo. 181; Converse v. Blumrich, 14 Mich. 109; Knappen v. Freeman, 47 Minn. 491; Rothschild v. Mack, 115 N.Y. 1; Burgert v. Borchert, 59 M......
  • Hetzler v. Millard
    • United States
    • Missouri Supreme Court
    • 3 Julio 1941
    ...619, 29 S.W. (2d) 1100; Commerce Trust Co. v. Keck, 283 Mo. 209, 223 S.W. 1057; Noell v. Remmert, 326 Mo. 148, 30 S.W. (2d) 1009; Dunn v. White, 63 Mo. 181; Key v. Jennings, 66 Mo. 356. (7) Appellants' loss having been caused by their own carelessness and trustfulness of Stewart, they canno......
  • MacKinnon v. Weber
    • United States
    • Missouri Court of Appeals
    • 8 Noviembre 1934
    ...v. Weber. Stufflebean v. Peaveler, 274 S.W. 926, l. c. 929; Bank v. Hutton, 224 Mo. l. c. 65; Torlitt v. Hayes, 196 S.W. 790; Dunn v. White, 63 Mo. 184; Snyder v. Stemmons, 151 Mo.App. 156; Adams Barber, 157 Mo.App. 370, l. c. 386 et seq.; Koontz v. Kaufman, 31 Mo.App. 397; Paretti v. Rehen......
  • Denny v. Guyton
    • United States
    • Missouri Supreme Court
    • 27 Mayo 1931
    ... ... e. false representations ... Hamlin v. Abell, 120 Mo. 188; Pomeroy v ... Benton, 57 Mo. 531, 77 Mo. 64; Dunn v. Oldham's ... Admr., 63 Mo. 181; Converse v. Blumrich, 14 ... Mich. 109; Knappen v. Freeman, 47 Minn. 491; ... Rothschild v. Mack, 115 ... Corp., 286 S.W. 95; Dexter & Carpenter, Inc., v ... Houston, 20 F.2d 647 ...           Madden, ... Freeman & Madden, Edw. J. White, Ryland, Boys, Stinson, Mag & Thomson and Geo. L. Edwards for respondents ...          (1) ... Plaintiff's petition fails to state ... ...
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