Lake v. Tyree.1

• Decision Date: 14 June 1894
• Citation: 19 S.E. 787,90 Va. 719
• Parties: LAKE v. TYREE.1
• Court: Virginia Supreme Court

19 S.E. 787

90 Va. 719

LAKE

v.TYREE.¹

Supreme Court of Appeals of Virginia.

June 14, 1894.

Sale op Land—Fraud — Evidence — Action on Check—Judgment.

1. Fraud without damage gives no cause of action.

2. Defendant, having purchased and paid for certain lots, visited them in company with an agent of the seller. When they reached the property, the agent said: "These lots are not such as I represented to you. It is evidently a fraud, and I do not think you should take them." Held that, as these declarations were made after the sale was closed and the agency terminated, they were inadmissible in an action to rescind said sale for fraud.

3. Fraudulent representations by the vendor to the vendee concerning the value of land sold, its condition, and adaptation to particular uses, will not entitle the vendee to relief, unless he has been fraudulently induced to forbear inquiries or examination which he would otherwise have made.

4. Plaintiff solicited defendant to purchase certain lots and stock, representing the lots to be level, and suitable for building purposes. He had never seen the lots, and, relying on these representations by the plaintiff, he purchased them. On the same day he went to see the lots, and found them badly washed into deep gullies; that one was 30 feet below the level of the street, and another on a steep declivity. He demanded the return of his check. Neither the plaintiff nor his agent ever saw the lots prior to the sale, and were not guilty of intentional fraud, nor did they use any artifice to induce the defendant to forbear investigation of the lots, which were accessible. Held, that the defendant was without relief.

5. The modern covenants, which have taken the place of ancient warranty, do not refer to representations made by a seller to induce a sale of real estate.

6. A verdict in an action on a check was for "the amount of the debt in the declaration mentioned." The declaration demanded a certain sum and interest. Held, that interest could be included in the judgment; section 2853, Code Va. 1887, authorizing judgment "for the principal and charges of protest, with interest from date of protest."

Fauntleroy, J., dissenting.

Error to circuit court, Madison county; D. A. Grimsley, Judge.

Action by William R. Tyree against Robert T. Lake on a check. Judgment for plaintiff, and defendant brings error. Affirmed.

Rixey & Barbour and Jas.' G. Field, for plaintiff in error.

James Hay and T. C. Gordon, for defendant in error.

LEWIS, P. This was an action of debt to recover the amount of a certain check for $1,100, and $2.60, cost of protest. The check was given by the defendant to the plaintiff on the 9th October, 1890, in payment of ten shares of the capital stock of the Goshen Land & Improvement Company and four lots of land situate in Goshen, which had been drawn the day before by the plaintiff, as the owner of the said shares. The defendant pleaded the general issue, and also two special pleas, under section 3299 of the Code, averring fraud in the procurement of the contract in question. To the first special plea there was a demurrer, which was sustained; and, issue having been joined on the remaining pleas, the parties went to trial, which resulted in a verdict and judgment for the plaintiff.

1. As to the first ground of error, viz. the sustaining of the demurrer to the first special plea, it is enough to say that there is no averment of injury to the defendant in consequence of the alleged fraudulent misrepresentation in regard to the value and description of the lot referred to in the plea, which renders the plea clearly bad. The defense set up in the plea is an equitable one, allowed by the statute, in the nature of a cross action for the rescission of the con tract; and in such a case, as In an action of deceit, the complainant must allege and prove (1) fraud on the one side, and (2) consequent injury to the complainant on the other; for fraud consists not in mere intention, but in intention carried out by hurtful act. It consists of conduct that operates prejudicially on the rights of others. That "fraud without damage, or damage without fraud, gives no cause of action, " in such a case, is an ancient rule of the common law, for which the citation of authority is unnecessary.

2. The next question relates to the exclusion of certain evidence at the trial. It appears that in the afternoon of the day on which the transaction in question occurred, and after the check had been delivered to the plaintiff, the defendant, accompanied by one Wilson, went out to inspect the lots, which were in the immediate vicinity. Wilson was a real-estate agent at Goshen, in whose hands the plaintiff had placed the lots "for sale;" and the offer at the trial was to prove that, when the inspection was made, Wilson said to the defendant: "These lots are not such as I represented to you. It is evidently a fraud, and I do not think you should take them." This evidence was rightfully excluded. The rule is that the admission or declaration of an agent binds the principal only when it is made during the continuance of the agency, in regard to a transaction then depending, et dum fervet opus. If not thus made, it is no part of the res gestae, but hearsay, and therefore inadmissible. 1 Greenl. Ev. § 113; Railroad Co. v. Sayers, 26 Grat. 328. Here the declaration sought to be proved was not made during the continuance of the agency, but after it had ceased to exist. ' The contract was executed. The transaction had been terminated. As the defendant himself testified, the sale had been "closed." The bargain was made, and the check for the purchase price delivered, before dinner, and the declaration made "after dinner, " with an interval, perhaps of several hours, between them. When the sale was closed, the business was completed, and the agency was functus officio; and there is no more reason for holding that it continued two hours thereafter than there would be to say that it continued as many years thereafter, or that it will continue indefinitely.

It was also contended in the argument at the bar that the declaration ought to have been received, on the ground that it was reported to the plaintiff in the presence of Wilson and the defendant, and not contradicted by the plaintiff. But, as to this, it is enough to say that there is no mention of any such fact in either of the bills of exception that were taken to the exclusion of the evidence; and, in determining this branch of the case, we are not at liberty to look outside of those bills.

3. The next question, then, is, ought theverdict to have been set aside on the grounds that it was contrary to the law and the evidence? The defense set up in the second special plea was that the contract was procured by fraud; that is, that the plaintiff represented the lots to be smooth and level, and suitable for building purposes, which representations, it is alleged, were false and fraudulently made, with intent to deceive and defraud the defendant, etc. The general rule in regard to misrepresentations in the sale of property which will support an action of deceit or a suit in equity for rescission is that the representation must be in regard to a material fact, constituting an inducement to the contract, on which the complainant had a right to rely, and did rely, and by which he was actually misled to his injury. Lowe v. Trundle, 78 Va. 65. The mere expression of an opinion, however, even in strong and positive language, is no fraud, though it be false. Such statements are not fraudulent in law, because, as was said by Judge Staples in Grim v. Byrd, 32 Grat. 293, they do not ordinarily deceive or mislead, but arc considered, as the supreme court of the United States expressed it in a recent case, as "trade talk, " which is allowable. Development Co. v. Silva, 125 U. S. 247, 8 Sup. Ct. 881. In the early and often-cited case of Bayly v. Merrel, Cro. Jac. 386, It was adjudged that "the law gives no remedy for voluntary negligence;" and so the law is at the present day. Hence, generally speaking, if the parties have equal means of information, so that, with ordinary prudence or diligence,...