Griffith v. Eby

• Citation: 12 Mo. 517
• Parties: ROBERT H. GRIFFITH v. DAVID S. EBY.
• Decision Date: 31 October 1849
• Court: United States State Supreme Court of Missouri

12 Mo. 517

ROBERT H. GRIFFITH

v.DAVID S. EBY.

Supreme Court of Missouri.

October Term, 1849.

APPEAL FROM THE HANNIBAL COURT OF COMMON PLEAS.

GLOVER & CAMPBELL, and THOMAS SUNDERLAND, for Appellant. The judgment should be reversed--1st. Because the evidence shows no intentional and deliberative fraud practiced by the assignee of the note sued on, upon the appellant. First, by filing in the face of legal penalties, a fraudulent plat; and secondly, by exhibiting that plat, and averring the ownership of all the lands covered by it, save where the reservations were marked upon it; and thirdly, by misrepresenting the location of the ice-house, a material inducement to the purchase. 2nd. That the appellant had the right to rely upon statements so solemnly made and so frequently repeated, both by record and verbal declarations, and hold the party legally responsible therefor, if ascertained to be false. If the appellant is to be held remediless in this case, because he trusted the declarations of the appellee, and did not measure and survey the whole ground, it is believed that fraud, will generally go unpunished. Had the fraud been manifest to the observation of the purchaser, or fallen within the grasp of any of his senses as he passed over the ground? Was it evident that he could have discovered the falsity of his representations from any point at which he examined the tract, the court might well have told the jury to find against him. Had evidence of any sort been present to his mind, calculated to awaken suspicion of the verity of the representations, a case of laches might have been made against him: or had the opportunity of examination been immediate, as in case of goods sold in the absolute presence of the vendor, and not looked at by him, he might have been charged with willful neglect. But this case is wholly different; none of these things occurring, the purchaser was required to doubt the truth of representations apparently fair, without any reason whatever, and without having any means of convenient and ready examination; to set about a laborious and tedious survey of Stout's addition to the town of Hannibal, which could not have been effected under several hours, perhaps half a day. It is believed that no case has been adjudicated requiring a party under such circumstances, to question the good faith of another, or to suffer a serious loss for not resorting to care and diligence which nothing in the case suggested. 3rd. The testimony in the cause does not convict the appellant of neglect of ordinary care and diligence, if in fact such was proper language in instructions to the jury. No man would have acted with more discretion or carefulness, conceding to the vendor ordinary sincerity. Where there is nothing to create suspicion, there is no imputing laches for reposing confidence. 4th. The defense was a bar to the action, if true; and the damages sustained by the appellant far exceed the debt.

MCDONALD, for Appellee.

1st. The plat marked A., and the deed from Stout to Griffith, clearly show that Lahenan was wholly mistaken in his testimony, in relation to the conversation which took place in his office at the time he drew the deed. The witness says he was informed by the parties, that they had traded with reference to said plat as the reservations appeared on it. Now there is not a single reservation upon it, as will appear by looking at it. Again: The deed from Stout to Griffith expressly reserves...