A. Howton v. E.A. Strout Farm Agency

• Decision Date: 18 January 1916
• Citation: 96 A. 330,90 Vt. 50
• Parties: A. HOWTON ET AL. v. E.A. STROUT FARM AGENCY ET AL
• Court: Vermont Supreme Court

96 A. 330

90 Vt. 50

A. HOWTON ET AL. v. E.A. STROUT FARM AGENCY ET AL

Supreme Court of Vermont

January 18, 1916

November Term, 1915.

CASE for deceit in the sale of a farm. Plea, the general issue. Trial by jury at the September Term, 1914, Windham County Waterman, J., presiding. Verdict and judgment for the plaintiffs. The defendants excepted. The opinion states the case.

Judgment affirmed.

A F. Schwenk, Stickney, Sargent & Skeels and Ernest E Morse for the defendants.

Barber & Barber for the plaintiffs.

Present: MUNSON, C. J., WATSON, HASELTON, POWERS, AND TAYLOR, JJ.

OPINION

HASELTON

This action is for fraud and deceit in the sale of real estate. Verdict and judgment were against the defendant Farm Agency for $ 550. Exceptions were taken.

The evidence in behalf of the plaintiffs tended to show that prior to May 24, 1913, they lived in Canada; that they saw in a catalogue of the defendant agency an advertisement offering for sale a farm in Vermont; that upon reading the advertisement they determined to purchase the farm, sold out their real and personal holdings in Canada and came to Brattleboro, where the advertisement bore date, and thereafter purchased the farm in question. The plaintiffs were father and son.

At the close of the evidence the defendant agency moved for the direction of a verdict in its favor. The motion was overruled and the defendant excepted. The advertisement represented that there were on the farm "about 500 apple trees in fine bearing condition." The plaintiffs' evidence tended to show that there were less than 100 such trees on the farm. The advertisement represented that there was "plenty of wood and 100,000 feet of timber on the farm." The plaintiffs' evidence tended to show that there were only from 8,000 to 10,000 feet of timber on the farm. Here, on the evidence of the plaintiffs, were very material misrepresentations as to existing facts, and the representations appear to have been put forth, either with knowledge of their falsity, or recklessly and without knowledge.

There was in the advertisement a gross misrepresentation as to acreage, but as the case was developed we lay little stress on that.

The evidence of the plaintiffs tended to show that the representations were fraudulent and that they relied on them. Wheeler v. Wheelock, 34 Vt. 553; Cabot v. Christie, 42 Vt. 121, 1 Am. Rep 313; Darling v. Stuart, 63 Vt. 570, 22 A. 634; Johnson v. Cate, 75 Vt. 100, 53 A. 329; Corey v. Boynton, 82 Vt. 257, 72 A. 987; Adams v. Ladeau, 84 Vt. 460, 79 A. 996; Manley v. Johnson, 85 Vt. 262, 265, 81 A. 919; Childs v. Merrill, 63 Vt. 463, 22 A. 626, 14 L.R.A. 264; Rowley v. Shepardson, 83 Vt. 167, 171, 74 A. 1002, 138 Am. St. Rep. 1078; Crompton v. Beedle, 83 Vt. 287, 75 A. 331, 30 L.R.A. (N.S.) 748, Ann. Cas. 1912A, 399.

But the defendant argues that the plaintiffs did not use ordinary vigilance to ascertain whether or not the representations were true, that they could readily have ascertained the facts, and that the rule, caveat emptor, applies. But there was evidence tending to show that the plaintiffs were thrown off their guard by the doings and sayings of the local agent of the Strout Agency, and it was for the jury to say on the evidence whether or not the plaintiffs acted with due caution.

After verdict and before judgment the defendant, the Strout Agency, moved the court to set aside the verdict of the jury against it on the ground that the verdict was "against the evidence" and against "the weight of evidence," expressions which mean the same thing. The motion was overruled, and an exception taken. But the matter was within the discretion of the trial court, and there is nothing here for us to review. Stearn v. Clifford, 62 Vt. 92, 18 A. 1045; Coolidge v. Ayers, 77 Vt. 448, 61 A. 40; Marcy v. Parker, 78 Vt. 73, 62 A. 19; Lincoln v. C. V. Ry. Co., 82 Vt. 187, 72 A. 821, 137 Am. St. Rep. 998; Lathrop v. Levarn, 83 Vt. 1, 74 A. 331.

The plaintiffs' evidence tended to show that the farm was worth from $ 400 to $ 500 and that had the farm been as represented it would have been worth from $ 1,200 to $ 2,000.

Several witnesses living in the neighborhood of the farm and familiar, as they said, with real estate values in the vicinity, testified as to the value of the farm. Some, as to its value as it actually was, some, as to its value if it had been as represented; and some testified in both particulars. Some objections were made and exceptions taken during this testimony. This testimony tended to show the differences in the value of the farm, as it would have been if it had been as represented, and as it actually was. This was a proper way of getting at the damages. Belka v. Allen, 82 Vt. 456, 74 A. 91; Shanks v. Whitney, 66 Vt. 405, 29 A. 367; Bowman v. Parker, 40 Vt. 410; Brown v. Sawyer, 1 Aik. 130.

It is claimed that each witness should have testified to the difference in value, but that was not necessary. There was no error in the method of getting at the difference.

One witness for the plaintiffs was asked to describe the pasture on the farm, but objection being made, he was confined by counsel and the court to the matter of the timber growing there, and...