McFarland v. Carver

• Decision Date: 31 October 1863
• Citation: 34 Mo. 195
• Parties: WILLIAM MCFARLAND, Defendant in Error, v. SENECA CARVER, Plaintiff in Error.
• Court: Missouri Supreme Court

34 Mo. 195

WILLIAM MCFARLAND, Defendant in Error,

v.SENECA CARVER, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1863.

Error to Marion Circuit Court.

McFarland sued Carver upon promissory notes, and for the foreclosure of a mortgage given to secure them. On the 24th day of October, 1856, McFarland sold to Carver the lands mentioned in the petition for $7,000; Carver paid $5,000 cash, and gave his two notes, of $1,000 each, for the balance.

For defence, and by way of counter-claim, Carver set up in his answer, that “plaintiff, well knowing that about one hundred and twenty acres of said land had, prior to said sale, been overflowed by the waters of the Mississippi river, falsely and fraudulently represented to the defendant that the said one hundred and twenty acres had never been overflowed or inundated; and the defendant being ignorant that said land had been overflowed, and relying upon the truth of the said false and fraudulent representation, accepted the purchase of said lands, and by means of the promises he has been damaged $3,500, which he asks to be set off. And for further defence, “that, at and prior to the time of said sale and delivery of said notes, plaintiff, well knowing said lands had overflowed, and were liable to overflow, fraudulently concealed from defendant that fact; and that defendant was ignorant that said part of said land had been overflowed, and was subject to overflow, and therefore claimed $3,500 damages.

The replication of the plaintiff admitted the sale of the land for $7,000, and the payment of $5,000, and that the two notes, for $1,000 each, were given for the balance; and admitted that one hundred and twenty acres overflowed, and was subject to overflow, but denied that he represented that the one hundred and twenty acres had never been overflowed by the waters of the river; denied that defendant was ignorant that same was subject to overflow; denied that he made any fraudulent concealment from the defendant of the overflow and inundation, or the liability of said land to overflow; and denied that defendant was ignorant thereof.

A jury was empannelled, and found a verdict for the plaintiff for debt and costs.

Plaintiff requested the court to instruct the jury as follows:

1. If the jury believe, from the evidence, that the defect set up as the basis of the defendant's counter-claim was patent, that is, such as might have been discovered by ordinary vigilance on the part of defendant (the purchaser), then the plaintiff was not bound to point out such patent defect, and hence the jury should find for the plaintiff.

To this instruction defendant excepted.

The court, on its own motion, gave the jury the following instructions:

1. If the jury believe, from the evidence in the cause, that plaintiff, at or before the sale of the land in question to the defendant, knowing said land to be subject to overflow, used any artifice to mislead the mind of the defendant, and throw him off his guard, and to prevent him from making as careful an examination of the land in question as a man of ordinary prudence would otherwise have made; and that defendant was thereby misled, thrown off his guard, and prevented from examining said land, and in consequence thereof was and remained ignorant of the fact that said land was subject to overflow, up to the time when he bought said land, then, and in that case, the jury should find for the defendant, and assess damages according to the measure heretofore stated by the court.

2. The burden of proof, under the issues in the case, is upon the defendant, and the jury will find for the plaintiff the full amount of balance of principal and interest due on the notes sued on, unless it has been proven to this jury by the evidence in the cause--1st, that the defendant Carver, when he bought it off plaintiff, was ignorant that the land in question was subject to inundation or overflow, and that plaintiff, knowing that fact, failed to disclose it to defendant; 2d, that defendant was ignorant, when he bought said land of plaintiff, that it was subject to inundation or overflow, and that plaintiff represented to defendant, before said sale was closed, that it was not subject to inundation or overflow, knowing such representation to be untrue.

3. If the jury find, from the evidence in the cause, that plaintiff either so misrepresented to, or concealed from defendant, as to the fact that said land was subject to overflow, they should find for defendant, on his counter-claim, and allow him such damages as they may consider he has sustained by reason thereof.

4. If the jury find the issues joined on defendant's counter-claim, or either of such counter-claims, for defendant, the measure of damages is the amount the land was worth in the market, less, if anything, in consequence of its being subject to overflow, than it would have been worth if it had not been subject to overflow.

5. If the amount of damage so found by the jury be less than the amount of the balance of principal and interest due on said notes, the verdict should be for the balance due on said notes, after deducting such damage from the principal thereof, at the date of said notes; and if such damage be equal to such balance of principal due on said notes, the verdict should be for the defendant; and if the damages so found, in favor of defendant, exceed the amount of said notes, the verdict should be for the defendant, for such excess.

6. That unless the plaintiff knew, or had reason to believe, that the defendant was ignorant of the fact that the land...