Merwin v. Arbuckle

• Decision Date: 31 January 1876
• Citation: 1876 WL 10036,81 Ill. 501
• Parties: ASHER MERWINv.ALEXANDER ARBUCKLE.
• Court: Illinois Supreme Court

81 Ill. 501

1876 WL 10036 (Ill.)

ASHER MERWIN

v.ALEXANDER ARBUCKLE.

Supreme Court of Illinois.

January Term, 1876.

WRIT OF ERROR to the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding.

This was an action on the case, by Alexander Arbuckle against Asher Merwin, for fraud and deceit in the sale of Missouri land. The plaintiff recovered in the court below. Messrs. BLOOMFIELD, POLLOCK & CAMPBELL, for the plaintiff in error.

Messrs. STEVENSON & EWING, for the defendant in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

The evidence in this case is conflicting, and it was for the jury to reconcile it, and find according to its weight, under proper instructions, and it was such a case as required that the law should have been clearly and fairly stated to the jury in the instructions.

Plaintiff in error insists that the court committed manifest error in giving the instruction for defendant in error. He insists that the instruction ignores the scienter in a false representation to make it fraudulent. A careful examination of the instruction, we think, fails to disclose any ground for the criticism. The jury are informed that, if plaintiff in error falsely and fraudulently represented that it was splendid, high rolling land, and that 160 acres was good prairie, and the remainder was timber land, covered principally with walnut trees, and there were 100 bearing pecan trees on the timber land, etc., and the representations were false, then the jury should find for the plaintiff.

To render a representation fraudulent, it must be false, and not only so, but the party making it must know that it is false. To recover in an action for deceit, the statement must be untrue, the party making it must know that it is false, and the person seeking to recover must have relied on the statement as true, and have been induced to act upon the statement; and the statement, to authorize a recovery, must have been in relation to a matter material to the transaction. See Wheeler v. Randall, 48 Ill. 182; Hiner v. Richter, 51 Ill. 299.

As a general rule, representations as to mere value, although known to be false, will not constitute fraud. Banta v. Palmer, 47 Ill. 99. But this instruction requires all the other representations to be proved false, as well as the representation as to what plaintiff in error represented he had paid for the land. And even if that representation was not alone sufficient to constitute fraud, it did plaintiff in error no injury, as proof of its falsity was superadded to the other representations. It increased the burthen of proof on defendant in error. Had the instruction been in the alternative, as to proof of the falsity of the representations, then a very different question would have been presented for...