Mincy v. Crisler

• Decision Date: 21 May 1923
• Docket Number: 23288
• Citation: 96 So. 162,132 Miss. 223
• Court: Mississippi Supreme Court
• Parties: MINCY v. CRISLER

96 So. 162

132 Miss. 223

MINCY v. CRISLER

No. 23288

Supreme Court of Mississippi

May 21, 1923

1. VENDOR AND PURCHASER. Vendor under no duty to disclose fact that reasonable and ordinary diligence would have disclosed.

Where purchaser was aware of presence of open ditch, and vendor made no representations regarding its course or the foundations of the house, he was under no duty to disclose any fact that reasonably diligent inspection would have disclosed.

2. VENDOR AND PURCHASER. Purchaser entitled to assume that foundation did not rest on old lumber covering ditch.

Where there was nothing to indicate that covered portion of ditch changed its course, or that foundation of house rested on its covering, purchaser had right to presume that no reasonably prudent person would place the foundation pillars directly over a ditch covered with dirt and old and decaying lumber.

3. VENDOR AND PURCHASER. Error to direct verdict for vendor sued for purchaser's damages from collapse of ditch covering on which house foundations were placed.

Where there was evidence that lumber covering ditch on which foundation pillars of house rested was old and defective, and that there was nothing to indicate that the foundation rested thereon, and it was doubtful whether inspection would have disclosed such fact, it was error to direct verdict for vendor in purchaser's action for damages to the house from the collapse of the ditch covering.

HON. W H. POTTER, Judge.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Action by J. T. Mincy against H. F. Crisler. Judgment for defendant and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Flowers & Brown and C. L. Hester, for appellant.

The court should have little trouble deciding this case. It has only to consider whether the defect complained of was a patent or latent one. The degree of diligence necessary in examining the property in order to discover the defect determines whether it is a latent or patent one. If it could be discovered by the exercise of ordinary diligence it is a patent defect. If it could not be thus discovered it is a latent one. This statement is made on the authority of the definitions of patent and latent defects as given in Lunn v. Shermar, 93 N.C. 164, as follows: "A patent defect is one that may be discovered by the exercise of ordinary diligence." "A latent defect is one that cannot be thus discovered."

The defect complained of here was the fact that certain pillars of the house rested over the underground ditch, on an insecure foundation. The damage was caused by the covering over the ditch caving in and the foundation of the house being wrecked. The open ditch ran along the west line of the lot until within a few feet of the rear of the house. The west line of the lot was the center of the ditch. It was covered over from this point to Central street and on the south side of Central street. The turn in the course of the ditch that carried it under the house was covered over, completely hidden from view. This could not be seen without crawling down the covered part of the ditch with a lighted candle. From an examination of that part of the ditch which was open it appeared to continue straight in its course and to miss the house. Appellant examined the property and it appeared to him that this was the case. The walls and fences that enclosed the ditch made a strict examination of it difficult but appellant made the examination that a man of ordinary or reasonable prudence would have made and failed to discover the defect. Appellee was present and saw that he had not discovered it but said nothing to apprise him of its presence or to put him on inquiry that would have led to its discovery. He sold the property to appellant for a sound price but it was not sound. The surface on which the foundation of the house rested appeared sound. On account of its unsoundness appellant was deceived and suffered damage. It was fraudulent for appellee to thus construct and conceal this defect. This action was brought to recover the damage actually suffered because of this fraud.

The question as to whether appellant exercised ordinary diligence in examining the property is one of fact. Or stated differently, the question as to whether ordinary diligence in the examination of the property would have discovered the defect, is one of law determining the nature of the defect existing. The degree of diligence exercised by appellant is a question for the jury to decide under instructions from the court as to the amount of diligence necessary. The facts remain that the defect existed, that appellant examined the property and did not discover it, and that he was damaged because of it.

The court, in sustaining the motion of defendant to exclude plaintiffs' evidence, made at the conclusion of plaintiffs' evidence, followed the dicta of the court in the case of Oswald v. McGehee, 28 Miss. 240, where it was said: "In the absence of all representations of the vendor, the purchaser is held to strict diligence in examining and judging for himself; but where representations are made as to doubtful matters, material to the transaction, the purchaser may protect himself by relying on the good faith of the vendor."

In our original brief we showed that this was not decision because representations were made in that case and the court was not called upon to say what the rule would be as to the amount of diligence required in the absence of representations. But this rule would not be objectionable if the court had made a distinction between patent and latent defects. This rule proceeds on the theory that all defects are the same in respect to the amount of diligence necessary in examining to discover them. It is in this respect that the rule is unsound. The rule followed by the great weight of authority is to this effect. In the absence of representations of the vendor, the purchaser is held to ordinary diligence in examining and judging for himself; but where representations are made as to doubtful matters, material in the transaction, the purchaser may protect himself by relying on the good faith of the vendor. Ordinary diligence in examining the property would reveal patent defects. It would not reveal latent defects.

We have not cited any cases on all fours with this case from point of fact. This is because of the exceptional nature of the facts of this case. The cases cited in our original brief do support the principle of this case, that he who sells an unsound thing for a sound price commits a gross fraud. The thing sold is not as represented, consequently the purchaser is deceived. Appellant exercised ordinary diligence in examining the property. He did not discover the defect. The defect was a latent one and appellee did not inform him of it. Appellee knew of the defect because he constructed it. He knew appellant was ignorant of it and did not inform him of its presence. The rule of caveat emptor should not be allowed to be made a barrier for fraud. Appellee says appellant should have taken a lighted candle and crawled down the covered ditch and thus covered the defect. He exacts much diligence of appellant but recognizes no duty on himself. It would have been easy for appellee to have informed appellant of the defect. The defect was an unsuspecting and unthought of one. Appellee constructed it and hid it from view.

The case is for the jury under proper instructions as to the law.

Powell & Harper, for appellee.

Appellant on page 11 of his brief quotes the following definitions: "A patent defect is one that may be discovered by the exercise of ordinary diligence." "A latent defect is one that cannot be thus discovered."

It seems to us very clear that this defect is one that could have been discovered, and plaintiff, in his testimony, admits that if he had gotten down in the ditch and taken a flash light he could have discovered the true course of the ditch. We further contend that a ditch of this character, open and unobstructed, is such a fact as to put the appellant on notice, and that he should have attempted to discover the true course of the ditch, either by actual investigation or by inquiry of the appellee, neither of which he did. Did the appellant exercise ordinary diligence? We think it is self-evident that he did not, in that he neither made an investigation nor an inquiry, and that if he had done either, he would have discovered the defect. Thus under appellant's own definition of patent and latent defects, the defect, in this case, was a patent one.

The appellant testified that he saw the ditch, but did not go to the point where the covering commenced and investigate. He was not interested in the character of the covering. It might have been of iron, or of stone, or of wood, so far as the plaintiff was concerned. He relied upon his own opinion as to the course of the ditch. We say that the character of the covering could have been discovered by the exercise of ordinary diligence, which plaintiff failed to use.

Under the facts as shown by the record in this case, we submit that the defect was plainly a patent one and we believe the trial court so held.

Duty of grantor and grantee. In the case at bar, appellee and appellant were dealing at arm's length; there was no fiduciary relationship between them, of any sort. The grantor, in such a case, was under no duty to disclose the said defect to grantee. No representations were made in regard to the ditch. If the appellee violated any duty, it was by his silence. It would seem that the rule of caveat emptor should apply in this case. Keates v. Earl of Cadogan, 10 Common Bench Reports 591; 70 Eng. Common Law Reports, 591 at 600; Doyle v. Union Pacific Railroad Co., 147 U.S. 113,...