Mitchell v. Zimmerman

• Decision Date: 31 December 1849
• Citation: 4 Tex. 75
• Parties: MITCHELL v. ZIMMERMAN.
• Court: Texas Supreme Court

4 Tex. 75

MITCHELL

v.ZIMMERMAN.

Supreme Court of Texas.

December Term, 1849.

The charge of the court must be considered with reference to the issue and the evidence, and the words employed must be taken in their ordinary and popular acceptation.

Where a party intentionally misrepresents a material fact or produces a false impression by words or acts, in order to mislead or to obtain an undue advantage, it is a case of manifest fraud.

It is a rule in equity that all the material facts must be known to both parties to render the agreement just and fair.

If there be any intentional misrepresentation or concealment of material facts in the making of a contract, in cases in which the parties have not equal access to the means of information, it will vitiate and avoid the contract; and it is immaterial whether the misrepresentation or concealment be made on the sale of real or personal property, or whether it relates to the title to land or some collateral thing attached to it. (Note 15.)

Whether a party who misrepresents a fact about which he is supposed to have peculiar information knows it to be false, or makes the assertion without knowing whether it be true or false, is wholly immaterial; for the affirmation of what one does not know or believe to be true is equally, in morals and law, as unjustifiable as the affirmation of what is known to be positively false.

The rule of caveat emptor does not apply where one party to the contract enters into it by reason of the false and fraudulent representations of the other, who is supposed to possess superior means of information.

The owner of an estate is supposed to be peculiarly cognizant of the quantity and quality of it; and a person coming to purchase or lease naturally and properly looks to him for information, and has a right to expect the truth. (Note 16.)

Every person reposes at his peril in the opinion of others when he has equal opportunity to form and exercise a correct judgment of his own.

Where a contract of lease was vitiated by the fraud of the lessor: Held, That the lessee had his election either to abandon the lease entirely or to hold on for the term at what the premises were reasonably worth. (Note 17.)

Where defendant “did not admit the justice of the claim, but said he would rather pay than go to law, and after making the last payment which he did make, asked further time on the balance:” Held, That he was not estopped from showing that nothing was due.

Where a misrepresentation as to quantity is made by the vendor, though innocently, the right of the vendee is to have what the vendor can convey, with an abatement of the purchase-money for so much as the quantity falls short of the representation.

Appeal from Washington. The appellant sued the appellee upon an agreement in writing for the payment of $225, alleged to be in consideration of the rent of a farm for the year ending on the 1st of January, 1849.

The agreement is appended to the petition and has indorsed upon it two receipts: one for $45, dated December 12, 1848; the other for $57, dated January 31, 1849.

At the Fall Term, 1849, the defendant answered, admitting the contract as alleged, but averring that he was induced to make it by the false and fraudulent representations of the plaintiff that there were in said farm at least one hundred and forty acres of land in a good condition for cultivation, when in truth there were less than fifty acres in that condition. The answer further alleges a partial failure of consideration in terms, and concludes with a general denial.

At the trial it was proved that previous to the contract the plaintiff and defendant were upon the premises, and that the former represented that there were one hundred and forty acres in a good condition for cultivation. The defendant saw the place, but did not go much over it. Afterwards the parties met, and, after some conversation about the place, entered into the written contract. The proof as to the amount of land in the rented farm in a good condition for cultivation varied from forty-seven to sixty acres. The witness testified that there appeared to be about fifty or sixty acres of the land in a good condition for cultivation, but that upon actual measurement there were found to be but forty-seven and four-tenths acres. It was further in proof that the defendant ascertained the deficiency in the land shortly after he moved upon the premises, but that he did not then leave the premises, for the reason that he was a stranger in the country, and could not rent another place. The defendant proved the payment of the two amounts of $45 and $57 credited upon the contract; that one of the payments was made after the expiration of the lease; that the defendant complained of the plaintiff, and said he had been advised not to pay the rent; did not admit the justice of the claim, but said he would pay rather than go to law; and after making the last payment mentioned, asked further time on the balance stipulated in the contract. The court instructed the jury that “if they believed from the evidence that the plaintiff, in making the contract with the defendant, had deceived and overreached him, they would then find for the plaintiff what the rented premises were reasonably worth; but if they believed that there was no fraud on the part of the plaintiff, then they would give him the full benefit of his contract, and find for the plaintiff what appeared to be justly due him.”

There was a verdict and judgment thereon for the defendant; motion for a new trial overruled; plaintiff appealed.

Lewis and Rivers, for appellant. This action was commenced by the appellant, who was plaintiff in the court below, on an instrument which forms a part of the record in this cause and is admitted in the defendant's answer and was executed by the defendant and one Cook, (who is not a party.) The plaintiff stipulates to rent his farm, pasture, peach-orchard, dwelling-houses, &c., till the first day of January, 1849, expressly refusing to “warrant or guarantee anything but the possession till 1st January, 1849.” It is in proof that the defendant saw the place before he rented, but did not go much over it. Then, as to the quantity, it was a mere matter of opinion. The defendant had a chance to form his opinion, for he saw the place. And, from the testimony, there was other land that had been cultivated, (as the plaintiff had represented.) So whether this was fit for cultivation seems to be a matter of opinion, and the defendant had a chance to judge. So of the fence. The defendant did not pretend or prove that he suffered in consequence of the failure in quantity or quality of land or the defects in the fence. Defects that can be seen as well by the vendee as vendor constitute no defense. There is not sufficient showing to defeat the written contract. (1 Law Lib., 182, 183.) At any rate, when the defendant found the deficiency and defects, he was bound to offer to rescind the contract; not to hold on and then plead it in defense. After the money had become due, the defendant agreed to pay and asked and obtained indulgence. These latter promises bind him. So the finding of the jury was contrary to law and evidence; the charge of the court erroneous and calculated to mislead and present an immaterial issue.

Gillespie, for appellee.

I. There is no error in the charge of the judge. If the defendant had been overreached by the representations of the plaintiff below, surely the contract ought not to be enforced. The verdict was justified by the evidence. Mitchell owned and lived on the place, and certainly knew the amount of tillable land and the situation for cultivation. The defendant below was a stranger; had not seen much of the plantation; examined it but imperfectly; trusted to the representations of the other, and was badly deceived. The testimony all tended that way. Will the fact of his remaining on the land and cultivating all that was tillable bind him for the whole? Surely not; but he would only be responsible for what the tillable land was worth. He paid that, and more than its just proportion.

II. Is there anything in what he said or did after the rent was due to bind him for the whole? He never admitted the justice of the claim; all the time spoke of the bad conduct of the plaintiff below in the affair; but, being a stranger, concluded at one time it would be better to pay all than to contest the matter. That would not bind him to pay an unjust claim.

WHEELER, J.

It is insisted, on behalf of the appellant, that the court erred in the instruction to the jury, and that the verdict was not warranted by the evidence.

The instruction given must be understood in reference to the issue and evidence in the case. The defense relied on was the fraudulent misrepresentation of the plaintiff in respect to the quantity of land within the rented premises in a good condition for cultivation. The issue was as to this alleged fraud and deception, and to this point the evidence was directed. The charge, then, must be understood as having had an especial and direct reference to this issue and the evidence respecting it. The words employed must be taken in their ordinary and popular acceptation. And, thus understood, the instruction was, in effect, that if the plaintiff had induced the defendant to enter into the contract by fraudulent misrepresentations, by which the latter had been deceived to his prejudice, the plaintiff was entitled to recover only the actual value of the rented premises; otherwise he was entitled to recover the full amount contracted for, less the payments previously made. This instruction, as applied to the case in evidence, was, it is conceived, correct. If the party, says Story, intentionally misrepresents a...