Morse v. Rathburn

• Decision Date: 31 October 1871
• Citation: Morse v. Rathburn, 49 Mo. 91 (Mo. 1871)
• Parties: JOHN H. MORSE, Respondent, v. GEORGE R. RATHBURN, Appellant.
• Court: Missouri Supreme Court

49 Mo. 91

JOHN H. MORSE, Respondent,

v.GEORGE R. RATHBURN, Appellant.

Supreme Court of Missouri.

October Term, 1871.

Appeal from Jefferson Circuit Court.

Fisher & Rowell, for appellant.

The evidence shows that David Morse had an equitable ownership in the land.Therefore Trow, Marshall & Co. were not agents appointed by an agent, but by a principal; and these representations to Rathburn about this property are as binding upon the plaintiff as if he had made them himself.(Sharp v. Mayor of New York, 40 Barb. 256;Sanford v. Handy, 23 Wend. 260;Glasscock v. Minor, 11 Mo. 655;Doggett v. Emerson, 3 Sto. 733;Monroe v. Pritchett, 16 Ala. 16, 785;Farrington v. Bullard, 40 Barb. 512;Mead v. Brum, 32 N. Y. 275.)

Green & Ahlvers, for respondent.

I.Even if David Morse was agent of plaintiff, he had no authority to delegate his authority to Coleman to act as subagent.Hence Coleman's statements of what he said to defendant, or what David Morse said to him, are incompetent as against plaintiff.(Chit. Cont., 7th Am. ed., 225;Tippets v. Walker, 4 Mass. 592, 595, 597;2 Kent, 5th ed., 633.)

II.If defendant relied upon his own judgment in regard to the quality of the land, and was not misled, he cannot avail himself of false representations.(2 Kent'sCom. 484-5.)

BLISS, Judge, delivered the opinion of the court.

In 1867the parties entered into a contract for the sale by the plaintiff to the defendant of certain real estate in Jefferson county for $21,000, the agreement containing a stipulation of forfeiture of $2,000 in case of its non-performance.The defendant failing to fulfill, the plaintiff brought suit for this forfeiture as for liquidated damages, and, upon appeal to this court, his claim was sustained (42 Mo. 495), although the cause was remanded to let in a defense of fraud and misrepresentation in the sale.The cause was again tried upon this defense, and the plaintiff obtained judgment, from which defendant appeals.

The instructions are all the defendant has a right to ask, and contain no error against him.All that he submitted were given, and several of those asked by the plaintiff were refused.

The alleged false representation was that certain unimproved portions of the farm were well timbered, and that the soil was good, when in fact most of the timber had been cut off, and the land was broken and rocky.The plaintiff claims that the defendant examined the premises and trusted to his own knowledge thus acquired, and upon this point the court instructed the jury that “if the defendant, before he made the contract with the plaintiff for the purchase of the land, did go upon and examine the unimproved land for himself, then it is immaterial whether the representations made to him by David Morse, in regard to the timber thereon and the quality of the soil, were true or not.”This instruction was excepted to, yet it does not contradict the most extreme view that has been taken upon this subject; for it has been always considered that where a false representation is made of the object of sale, the party purchasing must trust to the representation and be deceived by it.It is not sufficient that it be false, but it is essential that the purchaser be deceived by the representation--that he trust to it and buy on the strength of it.If he inspect what he purchases, whether land or personal property, and the defect is plainly apparent, he cannot be deceived--he cannot trust to a representation he sees to be untrue.Thus, in the case before us, if the representation had been made in regard to something not apparent--as a mineral, or the depth of the soil--an examination of the surface might not have undeceived him.But as to the existence of timber, or as to the external appearance...