Langdon v. Green

• Decision Date: 29 February 1872
• Parties: JACKSON LANGDON, Respondent, v. AMOS GREEN, Appellant.
• Court: Missouri Supreme Court

49 Mo. 363

JACKSON LANGDON, Respondent,

v.AMOS GREEN, Appellant.

Supreme Court of Missouri.

February Term, 1872.

Appeal from Ray Circuit Court.

A. & T. A. Green, for appellant.

“The vendee has the right to act and contract on the faith of any statement of fact made to him by the other party; and it cannot be imputed to want of diligence that he made no inquiry to ascertain the truth of such statement, but he had the right to rely and act upon such statements as true.” (Mead, Adm'r, v. Bunn, 32 N. Y. 275; Whitney v. Allair, 1 N. Y. 309; Smith v. Countyman, 30 N. Y. 655; Bryan v. Hitchcock, 43 Mo. 528; Van Epp v. Harrison, 5 W. Hill, 63; Sanford v. Handley, 23 Wend. 259; Haight v. Hayt, 19 N. Y. 464, 474; Hubbard v. Briggs, 31 N. Y. 528.)

The only question is, did the party make false representations about material matters, and did the other party rely and act upon them? (Thomas v. Beebe, 25 N. Y. 244; Atwood v. Wright, 29 Ala. 346; Burnett v. Judson, 21 N. Y. 238; Owens v. Recter, 44 Mo. 390.)

Wallace & Mitchell, with H. M. & A. H. Vories, for respondent.

The vendee must, in such cases as the one at bar, exercise common prudence and ordinary diligence in the use of the means and appurtenances within his reach, to inform himself of the condition, situation, title, etc., of the property he is about to buy, and he can not rely upon affirmations or representations of the vendor when the means of ascertaining the true condition of the property and state of facts are easily accessible to him by the exercise of ordinary diligence. (Van Epps v. Harrison, 5 Hill, 67-70; Bowring v. Stevens, 2 Carr. & P. 327; Harvey v. Young, Yelverton, 21, and note; Davis v. Meeker, 5 Johns. 354 and cases cited; 2 Kent's Com. 482-4; 1 Sugd. Vend., §§ 3, 4, 6; id., §§ 195, 204; 2 Stark. Ev. 471; 1 Sto. Eq Jur., §§ 200 a, 201; Holland v. Anderson et al., 38 Mo. 58-9; Jackson, Ex'r, v. Caldwell, 1 Cow. 642; 1 Sto. Eq., § 191; Dyer v. Hargrave, 10 Ves. 505.)

In House v. Marshall, 18 Mo. 368, the defendant resided in Indiana, and had never been in Missouri; had no opportunity to look at the land, but relied entirely on the representations of the plaintiff, and it is totally unlike the facts of this case. So in Owens v. Rector, 44 Mo. 390, there was nothing, on inspection of the lots, to indicate that the street, when opened, would cut off part of the lots and nine feet of the front of the houses. In this case appellant could see, and was also notified, that the land had been washing away.WAGNER, Judge, delivered the opinion of the court.

This was an action brought by the plaintiff against the defendant on a promissory note for $1,000. The answer set up that the note was given in part payment of the purchase-money for one-tenth of the Lexington ferryboat and franchises, and about six hundred acres of land and certain lots in the city of Lexington; that the plaintiff made certain representations as to the yearly earnings of the ferryboat and the quality of the land, and that only a certain amount had been washed away by the Missouri river; that, relying on the truth of said representations, and without further investigation, defendant was induced to purchase the one-tenth interest at $10,000; that he paid one-half down, and executed five several notes for $1,000 each for the remainder, the note sued upon being the first one due. The answer further alleges that the representations of the plaintiff were false and fraudulent, and made to deceive defendant, and that the value of the property was not one-half of what it would have been had the plaintiff's representation been true, and asks to recoup the damages sustained in consequence thereof against the note. Plaintiff's replication denied all the allegations of fraud, deceit, and misrepresentation charged in the answer. The trial was before the court and a jury. The verdict and judgment were for plaintiff for the full amount of the note.

On the trial the defendant introduced evidence tending to prove the charges made in his answer, and the plaintiff gave testimony to disprove the same, and tending to sustain the allegations in the replication. There was a great deal of evidence and it was conflicting, and it is not our purpose to either review or comment upon it. As to what the evidence proved, the verdict of the jury is conclusive, and that establishes the plaintiff's case. But it becomes necessary to examine the instructions to see whether the jury were misled or properly directed. This is the only point raised in the record, as no exceptions were taken to any ruling of the court in regard to admitting or excluding evidence. The defendant excepted to the giving of the plaintiff's instructions, and that is the only exception presented in the case. The instructions which were given for the plaintiff and are complained of are the second, fourth, eighth and tenth in the series.

The second instruction declares that it is not every false affirmation of the seller which will give the buyer an action for, or other right to recoup damages, although he may be deceived by such affirmation. The law aids only the diligent, and the law requires of the purchaser of property the exercise of common prudence, and ordinary diligence and trouble in making search and inquiries to satisfy himself of the correctness and truthfulness of affirmations or representations of the seller of property in regard to the title or condition of the property, before he can claim and obtain relief by way of recoupment of damages on account of such affirmations or representations, unless the jury further believe from the evidence that plaintiff practiced some deceit on defendant to prevent his making the inquiries, search or examination into the correctness or the truthfulness of his affirmations or representations.

The fourth instruction is as follows: “If the jury believe from the evidence that the sale of the property, for which the note sued on was given for part of the price thereof, was closed and consummated by plaintiff with defendant and his co-purchasers by the deed read in evidence, of the date of September 5, 1868, then all prior and cotemporaneous negotiations and representations are by law merged in such deed and the terms thereof, and the jury can look only to said deed for the terms and conditions of such sale, unless the jury further believe from the evidence that the defendant was induced so to close and consummate such sale and purchase by and through false and fraudulent representations of plaintiff concerning the quantity, title or location of such property, which the defendant had not the opportunity or means, by reasonable and ordinary industry and diligence, to learn and ascertain the true facts and conditions concerning.”

The eighth instruction is in reference to the rights of riparian owners on the banks of water-courses, and no point is made on it in this court, the counsel for the appellant admitting that the question of false and fraudulent representation is really the only one in the case.

The following is the tenth declaration: “The jury are instructed that the deed read in evidence, of date September 5, 1868, from plaintiff to defendant and others, for the ferry, ferry rights, lands and property, for the purpose of this suit must be taken and considered by the jury as conveying to the defendant and his co-purchasers all the property and franchises therein described, and as a conclusion between the parties as to the extent of ferry franchise, and quantity and quality of property therein purported to be conveyed, except to the extent, if any, that defendant has shown by evidence that such franchise and quantity of such property have fallen short or failed, and the...