Griffin v. Roanoke R. & Lumber Co.
| Decision Date | 13 March 1906 |
| Citation | 53 S.E. 307,140 N.C. 514 |
| Parties | GRIFFIN et al. v. ROANOKE R. & LUMBER CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Martin County; Cooke, Judge.
Action by John D. Griffin and others against the Roanoke Railroad & Lumber Company. Judgment for plaintiffs, and defendant appeals. Affirmed.
Where plaintiff signed a deed on the false representation of defendant that the deed contained a reservation of the timber on the land conveyed, plaintiffs' cause of action for the deceit was not dependent on the removal of the timber by defendant's vendee prior to the commencement of the action.
Plaintiffs alleged: That on the 1st day of November, 1899, they made a parol agreement with defendant company to sell to it all of the timber on their land measuring 12 inches at the stump when cut, except the long-leaf pine, which was expressly reserved. Defendant's agent, with whom the agreement was made, proposed that he would prepare the deed, to which plaintiffs assented. Thereafter, said agent presented to them for execution a deed which he stated was drawn in accordance with said agreement. Plaintiffs were unable to read the deed and requested the said agent to do so. After reading a few lines, he said that he did not have time to read the remainder, but assured plaintiffs that it was drawn in accordance with their agreement, and that the long-leaf pine was reserved. Relying upon said representation, plaintiffs executed the deed. Plaintiffs thereafter learned the long-leaf pine timber was not reserved from the operation of the said deed. That the representation made by defendants' agent that said timber was reserved was false and fraudulent. That, thereafter, the defendant sold and conveyed the said timber, including the long-leaf pine, to the Dennis Simmons Lumber Company for value, and without notice of the fraud which had been practiced upon plaintiffs. That by reason of the conveyance of said timber to said lumber company, plaintiffs have no remedy against such purchaser to have correction of said deed. That the value of the long-leaf pine timber was $221. Defendants denied the material allegations, admitting the sale to the Dennis Simmons Lumber Company. It was conceded that no portion of the timber was cut from the land when the summons in this action was issued. His honor permitted the plaintiffs to amend their complaint by alleging that the timber had been cut since the date of the summons. Defendant excepted. The court submitted issues directed to the inquiry whether there was an agreement that the long-leaf pine was reserved whether the plaintiffs were induced to execute the deed by the false and fraudulent representations of the defendant's agent and the value of the long-leaf pine timber. The jury responded to the issues affirmatively, and fixed the value of the timber at $221. Judgment was signed for plaintiffs, to which defendant excepted, and appealed.
A. O Gaylord, for appellant.
H. W Stubbs, for appellees.
CONNOR J. (after stating the case).
The record discloses a number of exceptions. The substantial merits of the controversy group themselves around three questions, all of which are properly raised upon the record and argued by counsel, orally, and in his well-considered brief. At the close of the entire evidence, defendant demurred and moved for judgment as of nonsuit, pursuant to the statute. The first cause of demurrer is: "Because no entry had been made by defendant or the Dennis Simmons Lumber Company, and no timber had been cut by either, nor by any one under their authority when the action was brought." Defendant contends that no action can be maintained for injury to real estate, unless prior to the date of the writ, a trespass has been committed. This is undoubtedly true, and if plaintiffs' action was for trespass, his honor would have granted the motion for judgment of nonsuit. The plaintiffs' cause of action is for deceit, in that they have sustained an actionable wrong by false and fraudulent representation of defendant's agent. The motion to nonsuit being founded upon the admission that the transaction is correctly stated in the complaint, as testified to by plaintiffs, we may examine the proposition maintained by defendant from that point of view. The parties made a contract for the sale of certain timber, reserving a well-defined class of trees. Defendant's agent undertook to reduce the contract to writing, in accordance with its terms. He knowingly included the timber, which was reserved and falsely represented to plaintiffs that said timber was reserved in the deed. By means of this false representation, he procured the execution of the deed. It would seem clear, both upon reason and authority, that by this conduct a right of action accrued to plaintiffs. If the matter had remained in this condition plaintiffs could have brought an action in the nature of a bill in equity for correction of the deed or sued, as in trespass on the case, for deceit. The case of Pasley v. Freeman, 3 Term Rep. 51 (2 Smith, L. C. 1300), settled the principle that "a false affirmation made by the defendant, with intent to defraud the plaintiff, whereby the plaintiff receives damage, is the ground of an action upon the case in the nature of deceit." Kent, C.J., in Upton v. Vail, 6 Johns. 181, 5 Am. Dec. 210, after expressing his approval of the doctrine announced in Pasley v. Freeman, said: " It has been the accepted law in American jurisprudence, and was discussed and adopted by this court in an opinion containing a "mine of learning," by Judge Battle, in March v. Wilson, 44 N.C. 144. After an exhaustive review of the English and American authorities, the learned justice concludes: "The principle upon which they were decided is that where there was fraud by the defendant, either in word or deed, resulting in damage to the plaintiff, he might sustain an action on the case for such damage." Whatever doubt may have existed in regard to the right to maintain an action for deceit relating to contracts for the sale of land respecting acreage, title, etc., is removed by the decision in Walsh v. Hall, 66 N.C. 233. Dick, J., after noting the general rule of caveat emptor, says: The learned justice concedes that in saying that the injured party, who had been induced by false and fraudulent representation to take a deed for a tract of land, to which the grantor had no title, could maintain an action for damages "seems to be in conflict with previous decisions of this court," citing Lytle v. Bird, 48 N.C. 222; Credle v. Swindell, 63 N.C. 305. Bynum, J., in Hill v. Brower, 76 N.C. 124, says: "The maxim of caveat emptor does not apply in cases where there is actual fraud." In that case the fraud consisted in a false and fraudulent representation in regard to the number of acres in a tract of land. Knight v. Houghtalling, 85 N.C....
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