Miller v. Wissert

• Citation: 134 P. 62,38 Okla. 808,1913 OK 475
• Parties: MILLER v. WISSERT.
• Decision Date: 22 July 1913
• Court: Supreme Court of Oklahoma

134 P. 62

38 Okla. 808, 1913 OK 475

MILLER v. WISSERT.

Supreme Court of Oklahoma

July 22, 1913

Syllabus by the Court.

If with intent to deceive, either party to a contract of sale conceals or suppresses a material fact, which he is in good faith bound to disclose, this is evidence of an equivalent to a false representation, because the concealment or suppression is in effect a representation that what is disclosed is the whole truth. The gist of the action is fraudulently producing impression upon the mind of the other party, and, if this result is accomplished, it is unimportant whether the means of accomplishing it are words or acts of the defendant, or his concealment or suppression of material facts not equally within the knowledge or reach of the plaintiff.

False representations of a vendor as to the quantity of a tract of land he offers for sale are not mere matters of opinion, but are material, and he cannot avoid their consequences merely because the vendee might have ascertained their falsity by a survey of the land or by reference to official plats and records.

Additional Syllabus by Editorial Staff.

Where a vendor listed his land for sale, and the agent sold it as a quarter section, and the contract of sale so described it when in fact it lacked several acres of being a full quarter section, the vendor was liable in damages for breach of contract, though the deed executed pursuant to the contract described the land as a certain quarter section "containing 160 acres, more or less, according to the government survey thereof."

Appeal from District Court, Alfalfa County; James W. Steen, Judge.

Action by Jacob Wissert against John P. Miller. Judgment for plaintiff, and defendant brings error. Affirmed.

Talbott & Owen, of Cherokee, for plaintiff in error.

Titus & Carpenter, of Cherokee, for defendant in error.

KANE J.

This was an action commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below, to recover a certain sum as damages alleged to be due the plaintiff on account of false and fraudulent representations made to him by the defendant, concerning the number of acres contained in a certain tract of land, purchased by the plaintiff from the defendant. Upon trial to a jury there was a verdict for the plaintiff, upon which judgment was duly entered, to reverse which this proceeding in error was commenced.

The record, in so far as it is set out in the briefs of counsel in compliance with rule 25 of this court (95 P. viii), discloses no reversible error. It seems that the defendant listed a certain tract of land owned by him with a real estate agent for sale; that the land, although described as a full quarter section, consisting of 160 acres, was in fact a short quarter and contained only 148.94 acres. The defendant did not inform the real estate agent that the tract of land was what is known as "a short quarter," and the real estate agent in his dealings with the plaintiff, who was desirous of purchasing a full quarter section, containing 160 acres, held out to him that the quarter section he had for sale answered that requirement. Thereupon the plaintiff and the real estate agent examined the land, and a few days thereafter the plaintiff and defendant entered into a written contract for the purchase and sale of the same, wherein the land was described as "the northwest quarter of section 19, township 25 north, of range 9 west," without designating the number of acres it contained. The contract also contained a provision to the effect that the contract, together with a deed to said land, shall be put in escrow in the Farmers' Bank at Jet, Okl., to be delivered when party of the second part paid a balance due on the purchase price.

In the deed executed in pursuance to this part of the contract the land was described as "the northwest quarter of section 19, township 25 north, of range 9 west of I. M. in Oklahoma containing 160 acres, more or less, according to the government survey thereof." Thereafter the balance of the purchase price was paid, and the deed was delivered...