Marshall v. Gilman

• Decision Date: 27 December 1892
• Citation: 52 Minn. 88,53 N.W. 811
• Parties: MARSHALL v GILMAN.
• Court: Minnesota Supreme Court

52 Minn. 88

53 N.W. 811

MARSHALLvGILMAN.

Supreme Court of Minnesota.

Dec. 27, 1892.

(Syllabus by the Court.)

1. Representations of fact made by the owner of property as inducements to its purchase by another, relied upon by the latter as being true, and constituting a substantial inducement to the purchase, become obligatory on the vendor as a contract, even though the vendee may have been also influenced by information derived from other sources.

2. An allegation of notice to a party may be sustained by proof of a notice to an authorized agent, although the agency be not pleaded.

3. If one, negotiating for the purchase of a lot of land represented to be of a certain width, afterwards accepts a conveyance describing the property as being of a less width, he cannot be deemed to have purchased relying upon such prior representation.

4. A vendee of real estate, having sued to enforce a rescission of the sale by reason of false representations, under a contract providing for a rescission, and being denied such relief by reason of his delay in seeking the same, and by reason of conduct inconsistent with a right to rescind, is not thereby barred of the right to prosecute a subsequent action ex contractu to recover damages for the breach of the contract, amounting to a warranty.

Appeal from district court, Ramsey county; EGAN, Judge.

Action by William R. Marshall against Edward R. Gilman to recover damages for breach of warranty. Verdict for defendant. From an order refusing a new trial, plaintiff appeals. Reversed.

John M. Gilman and Robertson Howard, for appellant.

Lusk, Bunn & Hadley, for respondent.

DICKINSON, J.

For a general statement of the transactions upon which this action is founded, reference may be made to the opinion in a former action between these parties, reported in 47 Minn. 131,49 N. W. Rep. 688. That action was prosecuted for the purpose of securing a rescission of an exchange of real estate. The plaintiff, having failed to secure that relief, commenced and prosecutes this action, ex contractu, to recover damages for breach of the representations concerning the New York property contained in the letter of the defendant, upon which representations, and the warranty expressed in the letter, the plaintiff claims to have relied in making the exchange of his real estate, situate in Minnesota, for that of the defendant, in the city of New York. This is an appeal by the plaintiff from an order refusing a new trial, a verdict having been rendered against him. So much of the case as we are called upon to consider is presented by a bill of exceptions. The letter of the defendant addressed to his agents Canby & Cathcart, and placed in their hands, previous to the negotiations which resulted in an exchange being made by deed, considered by itself and alone, did not constitute a contract, or impose any obligation on the defendant. It would not become effectual to bind the defendant until it should be accepted by some one who should purchase the defendant's property, influenced by and relying upon the representations and warranty therein expressed. It is to be taken as admitted by the pleadings that these representations were held out to the plaintiff as inducements to him to make the exchange, which was subsequently effected by mutual conveyances by deed. The question whether the plaintiff can recover in this action depends upon the facts as to whether, in making this exchange, he relied, either solely or in part, upon the representations set forth in the letter, and, if so, then whether the representations relied upon were or were not in accordance with the facts. As to the law bearing upon this feature of the case, it is to be said that if the plaintiff relied upon these representations as being true, if they constituted a substantial inducement to the making of the exchange, even though he may have also been influenced to some extent by information derived from other sources, the representations and expressed warranty thus relied upon and acted upon became obligatory on the defendant as a contract. McCormick v. Kelly, 28 Minn. 135,9 N. W. Rep. 675;Warder v. Bowen, 31 Minn. 335,17 N. W. Rep. 943;Safford v. Grout, 120 Mass. 20;James v. Hodsden, 47 Vt. 127. It may be added that, if the plaintiff actually knew that any one or more of the several representations were not true, he could not have been influenced by such representations, and they cannot therefore be regarded as entering into the contract....