Joseph v. Baker

• Decision Date: 16 May 1910
• Citation: 128 S.W. 864,95 Ark. 150
• Parties: JOSEPH v. BAKER
• Court: Arkansas Supreme Court

128 S.W. 864

95 Ark. 150

JOSEPH v. BAKER

Supreme Court of Arkansas

May 16, 1910

Appeal from Benton Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

Rice & Dickson, for appellant.

The words "more or less" in a deed can only be considered as intended to cover inconsiderable differences. 19 Ark. 109. And when the quantity is misrepresented, though innocently, the purchaser should recover the shortage. 61 Ark. 120; 19 Ark. 109. Parol evidence is not admissible to explain, modify or alter the deed. 21 W.Va. 632; Id 326; 67 N.Y. 338. Small shortages only are covered by the words "more or less." 67 Am. Dec. 120; 51 Id. 244; 24 Tex. 245; 76 Am. Dec. 109; 38 Id. 514; 69 Tex. 293; 52 S.W. 1074; 103 Tenn. 358; 47 L. R. A. 267; 87 N.Y. 327.

OPINION

FRAUENTHAL, J.

This was an action of deceit brought by A. H. Joseph, the plaintiff below, against J. W. Baker to recover damages for fraud inducing him to make a contract for the purchase of certain land from the defendant. The defendant sold to the plaintiff certain land in Benton County, Arkansas, in consideration of a stock of goods owned by the plaintiff at Carbondale, Ill. The land was sold in gross, and the deed of conveyance executed by the defendant gave a particular description of the land by metes and bounds, with the words added: "containing in all 198 acres, more or less." In his complaint the plaintiff alleged that before the purchase the defendant showed him the land, and "pointed out to him a portion of other lands not described in this deed, and claimed that he owned them, and that they were a part of the tract he was selling to plaintiff, upon which he relied at the time without knowledge of the falsity of the same; that said statements were false and known by defendant to be false;" that defendant falsely represented to him that the tract so sold and conveyed by him contained 198 acres when as a matter of fact it contained only 171 acres; and he sought to recover damages by reason of said false representation. Upon the trial of the case the plaintiff introduced evidence tending to sustain the allegations of his complaint. The defendant in his answer denied the allegations of the complaint relative to his making any misrepresentation as to the quantity of the land; and upon the trial of the case he introduced testimony tending to prove that he was familiar with the boundaries of the land, but did not know the number of acres in the tract; that there was a dispute as to whether the tract contained 198 acres or a less number; that he showed the land to plaintiff and pointed out the boundaries exactly as they are described in the deed, and pointed out to him no other land than that included within those boundaries and covered by the deed; and that he did not represent to plaintiff that the tract contained 198 acres; that before the deed was executed and before the sale and purchase was consummated the plaintiff was told and fully informed that the tract contained only 165 acres; and that the plaintiff said that it made no difference, that he was satisfied, but to write the deed stating that the tract contained 198 acres more or less, which was done. The evidence tended to prove that the tract of land conveyed contained 171 acres.

The court in effect instructed the jury that if the defendant falsely represented to plaintiff that the tract of land contained 198 acres, and that, relying upon such representation, the plaintiff paid therefor, when in fact there were only 171 acres in the tract of land conveyed, then the plaintiff was entitled to recover as damages the price of the deficiency in the number of acres so represented.

Over the objection of the plaintiff the court gave the following instruction:

"6. The court instructs the jury that, although you may find that defendant misrepresented to the plaintiff the number of acres in the tract of land in question at the time the land was shown to plaintiff by defendant, still, if you further find that, before the deed was executed and delivered to plaintiff, the defendant or his brother, Harry Baker, informed plaintiff that there was a less number of acres in the tract than had first been represented to be, and plaintiff had knowledge of this fact, and then accepted the deed for 198 acres, more or less, he could not recover from defendant, and your verdict should be for the defendant."

The jury returned a verdict in favor of the defendant, and from the judgment entered thereon the plaintiff appealed to this court.

It is urged by counsel for plaintiff that the court erred in permitting, over plaintiff's objection, the introduction of testimony on the part of the defendant that the plaintiff was informed at the time of the execution of the deed and before the final consummation of the sale that the tract of land only contained 165 acres, for the reason that this would contradict the terms of the written contract and deed which stated that the land contained "198 acres more or less." But we do not think that this contention is correct. The action that was instituted by plaintiff is not based upon the contract, but it is founded upon the alleged tort committed by the defendant in making false representations by which the contract was fraudulently obtained and the plaintiff wrongfully damaged. It is not an action to enforce the contract, but it is based upon fraud in the procurement of it. It is well established that in actions founded upon fraud parol evidence is admissible to show such fraud in the making of the contract, notwithstanding the contract is in writing; and likewise parol evidence is admissible to show the lack of such fraud.

In the...