Maxwell v. Sherman

• Decision Date: 13 April 1911
• Citation: 55 So. 520,172 Ala. 626
• Parties: MAXWELL v. SHERMAN.
• Court: Alabama Supreme Court

55 So. 520

172 Ala. 626

MAXWELL v. SHERMAN.

Supreme Court of Alabama

April 13, 1911

Rehearing Denied June 8, 1911.

Appeal from Circuit Court, Marshall County; A. H. Alston, Judge.

Suit by C. K. Maxwell against James R. Sherman for fraud and deceit. Judgment sustaining demurrer to the complaint, and plaintiff appeals. Reversed, rendered, and remanded.

The complaint contained 14 counts, some of which claim in various phraseology damages for misrepresentation and fraud in the sale of certain property within the town of Albertville. The others in varying phraseology claim damages for the breach of the contract in the sale of the practice and good will of the defendant as a physician to the plaintiff as a physician alleging a promise on the part of the defendant to retire from the practice in and about Albertville. The demurrers raise the points discussed in the opinion.

E. O McCord, A. E. Hawkins, George E. Sorrell, A. E. Goodhue, and John A. Lusk, for appellant.

Street & Isbell, for appellee.

SIMPSON J.

This is an action by the appellant against the appellee for damages for the breach of a contract to sell land and the good will of a practicing physician. Some of the counts claimed damages for the fraud and deceit of the defendant in representing that the practice which he was selling to the plaintiff was very much more lucrative than it really was, and other counts claimed damages for the fraud and deceit of the defendant in representing to the plaintiff that all of the land included in the fence around the property purchased belonged to the defendant and would go with the sale, whereas the fact is that a considerable part of said inclosure belongs to the town of Albertville as a part of the streets of said town thus placing the house on said property either on the street or so near thereto as to greatly impair its value.

The appellee insists that under the decisions of this court the plaintiff cannot claim for the misrepresentations in regard to the boundaries of the land conveyed, without showing that he has surrendered the possession of the same. There are cases which relate to a general failure of title, or to an incumbrance upon the land, and also to the question as to whether these matters could, under statutes then existing, be set up as a defense to a suit for recovery on the purchase-money notes, the purchaser remaining in possession and also as to whether a bill in chancery could be maintained for compensation, in which latter case it was held that the party had an adequate remedy at law for damages; but we do not find in any of them any intimation that a vendee may not maintain a direct action for deceit or fraud in making representations that are not true as to a matter of fact affecting the value of the land. Cullum v. Branch Bank, 4 Ala. 21, 34, 37 Am. Dec. 725; Patton v. England, 15 Ala. 69; Magee v. McMillan, 30 Ala. 420, 422; Lett v. Brown, 56 Ala. 550; Jones et al. v. State, to use, etc., 100 Ala. 209, 14 So. 115; Sivoly v. Scott et al., 56 Ala. 555, 558; Union Stave Co. v. Smith, 116 Ala. 416, 22 So. 275, 67 Am. St. Rep. 140. On the other hand, it is laid down by able text-writers that for false or fraudulent representations "relating to the quality, quantity, situation, or title to the property sold," or to the "extent or boundaries" of the same, the purchaser has sufficient ground for an action at law for damages. 2 Warvelle on Vendors, §§ 942, 952, pp. 1122, 1134. Our own court has held the same. Pritchett v. Munroe, 22 Ala. 502, 510; Kelly's Heirs v. Allen, 34 Ala. 663, 668; Perry v. Johnston et al., 59 Ala. 648, 653.

The cases which hold that the vendee must have been evicted from the land, or have given up the possession, are based upon the covenants for quiet enjoyment, or general warranty of title, and have no reference to an action for deceit, in which the measure of damages is the "difference between the value of the land as it is, and what its value would have been if its condition and quality had been as represented." 2 Warvelle on Vendors, § 943, p. 1125; section 976, p. 1166; section 977, p. 1169. The case of Christian v. Scott, 1 Stew. 490, 492, 493, 18 Am. Dec. 68, rests upon the fact that the plea was a total failure of consideration; the court saying: "There was not a total failure of consideration, for the vendee had the use and occupation of the land from the period of sale to the present time." Also: "Perhaps in an action of covenant on the warranty expressed in the deed or implied in law, a subsisting incumbrance at the time of the sale would be evidence of a breach of covenant, and support the action, without an eviction by title paramount." The case of Dunn, to use, etc. v. White & McCurdy, 1 Ala. 645, rests upon the principle that the statute of offsets did not cover unliquidated damages, and that "resort must be had to the covenants in the deed." The cases of Cullom v. Branch Bank, 4 Ala. 21, 37 Am. Dec. 725, and Patton v. England, 15 Ala. 69, relate to defenses against actions for purchase money, where defendant had received some benefit from the possession of the land; and the case of Lett v. Brown, was an effort to recover in an action of trover the entire purchase consideration.

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