House v. Marshall

• Decision Date: 31 July 1853
• Citation: 18 Mo. 368
• Parties: HOUSE, Plaintiff in Error, v. MARSHALL, Defendant in Error.
• Court: Missouri Supreme Court

18 Mo. 368

HOUSE, Plaintiff in Error,

v.MARSHALL, Defendant in Error.

Supreme Court of Missouri.

July Term, 1853.

1. In an action on notes given for the purchase money of land bought by defendant of plaintiff, the defendant may recoup the damages sustained by him, by reason of the false and fraudulent representations of the plaintiff, as to the quality and advantages of the land.

Appeal from Audrain Circuit Court.

This was a suit commenced in the Audrain Circuit Court, on two bonds for the direct payment of the sum of $350 each, by William House, the obligee, against William Marshall, the obligor. The defendant, in his answer, set up as a bar to a recovery on the bonds, that they were given in part payment for a tract of land of about 190 acres, in Audrain county, Missouri, and that, at the time of the purchase, plaintiff made false and fraudulent representations to him, concerning the quality, natural advantages and improvements of the land, and its contiguity to vacant land, by reason of which, he had sustained damages to the amount of eight hundred dollars.

At the trial, it appeared in evidence, that the defendant, being desirous of removing to Missouri, met with the plaintiff in Kentucky, and after some negotiation, contracted to purchase of him a farm, which he had recently lived on, in Audrain county, Missouri, at the price of $1,200, of which $500 were paid down, and for the balance, the bonds sued on were executed; that defendant had no opportunity to look at the land, but in making the purchase, relied entirely on the representations of the plaintiff; that a deed was executed, and in the fall of 1845, defendant moved to Missouri and entered on the land and had remained in possession of it ever since, up to the trial, exercising ownership over it, and that he had made valuable improvements upon it. Evidence was also offered to show that the representations made by the plaintiff, at the time of the purchase, were of the character charged in the answer.

There was no proof that defendant had ever offered to rescind the contract or notified the plaintiff that his representations, as to the character of the land, were false.

Plaintiff asked the court to give to the jury the following instructions:

1. Although the jury may find, that plaintiff made to defendant false representations, in regard to the situation, quality and improvements of said land, yet if they further find that he took possession of the same, in the fall of 1845, as stated by the witnesses, and has occupied and exercised ownership over it till this time, and making thereon valuable improvements, and further find, that he has not offered to rescind the contract, the jury may presume from these facts, that he affirmed the contract, and waived his right to any deduction on account of such false representations.

2. There is no evidence before the jury that defendant offered to rescind the contract.

3. Although the jury may find that plaintiff made to defendant false representations, in regard to the situation, quality and improvements of said land, yet, if they further find, that he took possession of the same in the fall of 1845, as stated by the witnesses, and has occupied it till this time, making thereon valuable improvements, and further find that he has not offered to rescind the contract, they ought to find for plaintiff the amount of said notes.

4. That, in this case, the jury cannot take into consideration the fact that the land adjoining the land sold by plaintiff to defendant was not vacant and subject to private entry.

5. The plaintiff is entitled to recover the amount due on said notes, unless the jury find that the plaintiff made false representations in regard to the quality, improvements and natural advantages of said land, and if they find that he made such representations, then the jury can only deduct from the amount of said notes, the value of the injury sustained by defendant, on account of such false representations.

All these instructions were refused by the court, to which refusal the plaintiff excepted.

There being a verdict and judgment for the defendant, the plaintiff brings the case to this court by writ of error.

Hardin, for plaintiff in error.

I. An instruction presenting facts fairly to the jury for their consideration, ought to be given. (Fine v. Rogers, 15 Mo. 321.) If there were facts from which the jury might believe that defendant had not relied upon the representations of plaintiff in making the purchase, or if he had, but waived his advantages and affirmed the contract, it was highly necessary that the court should so inform the jury. This was the object of the first, second and third instructions. (2 Kent. 79, 80; Hoggins v. Becraft, 1 Dana, 30; Holbrook v. Burt, 22 Pick. 546.)

II. Whether representations are material or not, is a question of law, and for this reason, the fourth instruction should have been given.

III. The fifth instruction ought to have been given. A reduction of the amount claimed by plaintiff was the sole object of the defense; and the court should have directed the rule for the finding of the verdict. (Holbrook v. Burt, 22 Pick. 546; Perley v. Balch, 23 Pick. 283; 12 Wheat. 183; 7 Mo. 430; Wade v. Scott, 7 Mo. 509.)

Howell, for defendant in error.

I. There was no evidence on which to base the first instruction. The defendant having moved his family to Missouri, relying exclusively upon the representations of plaintiff, took possession of the farm from the necessity of the case.

II. The defendant was not bound to follow the plaintiff to Kentucky to rescind the contract, but might obtain redress by the defense set up in this suit. (R. C. 832, tit. “Practice at Law;” 2 Kent's Com. 470, and notes; 22 Pick. 510; 8 Wend. 109; 3 Hill [N. Y.] 171; 11 Johns. 50; 15 Wend. 351-7; 14 ib. 199-200; 4 Mill's La. 347; 2 Hill [S. C.] 657; 13 Johns. 301.) Therefore, the second and third instructions asked were properly refused.

III. The fourth and fifth instructions asked were wrong. See 13 Johns. 395, which is expressly to the point, that the defendant is entitled to damages for a false representation of the external advantages of the land, although a deed passed.

RYLAND, Judge, delivered the opinion of the court.

The points requiring the consideration of this court, arise from the refusal of the Circuit Court to give to the jury the instructions which the plaintiff asked. The action is founded on two promissory notes, for three hundred and fifty dollars each; one due and payable in two years, and the other in four years after date, and dated 4th of October, 1845. The notes, upon their face, expressly purport to be for the balance of the ...