Nichols v. Lane

• Decision Date: 18 January 1919
• Docket Number: No. 119.,119.
• Citation: 106 A. 592
• Parties: NICHOLS et ux. v. LANE.
• Court: Vermont Supreme Court

106 A. 592

NICHOLS et ux.

v. LANE.

No. 119.

Supreme Court of Vermont. Washington.

Jan. 18, 1919.

Exceptions from Washington County Court; Leighton P. Slack, Judge.

Trespass on the case for deceit by F. A. Nichols and Mary Nichols against Grant A. Lane. Two special verdicts for plaintiffs. Judgment for plaintiffs on one of the special verdicts, and both parties except. Affirmed.

Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, and MILES, JJ.

S. Hollister Jackson and John W. Gordon, both of Barre, for plaintiffs.

Richard A. Hoar and Alland G. Fay, both of Barre, for defendant.

POWERS, J. The plaintiffs traded for the defendant's farm. They relied upon certain representations made by the latter concerning the property, which turned out to be untrue, and they bring this tort action for the resulting damages. The trial below was by jury, and at the close of the evidence the defendant moved for a verdict. This motion was overruled, and he excepted. Thereupon the court submitted to the jury as a basis of recovery these two representations set forth in the declaration :

(1) "There is no better land in Vermont." (2) "You can keep as many as forty cows in the pasture."

By special verdicts, the jury found for the plaintiffs on both of these representations, assessing the damages at $750 on each. A general verdict for the plaintiffs for the sum of $1,500 was also returned. The defendant moved to set aside each of these verdicts. The court granted this motion so far as it related to the special verdict based upon the representation first above specified, and to this the plaintiff excepted. So far as it related to the other verdicts, the motion was overruled, and to this the defendant excepted. Judgment was then rendered for the plaintiffs for the sum of $750, to which both parties excepted. The plaintiffs also excepted to the refusal of the court to render judgment on the general verdict as rendered.

In the consideration of cases like this, it must be kept in mind that the sufficiency of the representation in question depends largely upon the circumstances in which it is made, and the character of the other statements which accompany it. This is everywhere admitted, and is well shown by our own cases. The law does not attempt to lay down hard and fast rules, but deals with each case as it arises. It recognizes the difficulty of drawing the line beyond which credulity cannot go. A statement may be so extravagant and unreasonable that an alert and sensible person would not believe it; but this fact would not necessarily preclude one victimized by it from recovering damages, though it would be for consideration by the jury on the question whether he in fact relied upon it. So usually the questions involved are for the jury. Some are, however, so plainly of the one class or the other that they can be dealt with by the court.

Certain general rules are established, and by the application of these the solution of the questions here presented is not of much difficulty.

The action of the court in setting aside the first special verdict was without error. The ordinary motion to set aside a verdict is based on the claim that it is against the evidence, and is addressed to the discretion of the trial court. Howton v. Strout Farm Agency, 90 Vt. 50, 96 Atl. 330; McDonald v. McNeil, 92 Vt. —, 104 Atl. 337. But this was not the ordinary motion; it was specifically based upon the legal insufficiency of the representation to support an action. So the action of the court in granting the motion necessarily involved a ruling that the representation that "there was no better land in Vermont" was insufficient to support this action. This ruling is reviewable, and the exception saved is sufficient to raise the question,

It is well established by the cases that a representation relied upon in such a case as this must be of fact, and not estimate or opinion, and that it must be of an existing fact. Belka v. Allen, 82 Vt. 456, 74 Atl. 91; Hunt v. Lewis, 87 Vt. 528, 90 Atl. 578, Ann. Cas. 1916C, 170. It must also be a representation of an ascertainable fact, one susceptible of knowledge. Hedin v. Minneapolis Med. & Surg. Institute, 62 Minn. 146, 64 N. W. 158, 35 L. R. A. 417, 54 Am. St. Rep. 628; Spead v. Tomlinson, 73 N. H. 46, 56 Atl. 376, 68 L. R. A. 432; Kerr, Fraud, 82; Cooley, Torts, 501; 12 R. C.L.245.

The representation under discussion is not of this class. The fact embodied in it is, in the very nature of things, unascertain-able; that is to say, by no available process could the fact be known to the declarant. The plaintiffs must have known that the statement was not to be taken literally. It was so obviously nothing more than a highly exaggerated estimate or opinion that the plaintiffs had...