Piper v. Jenkins, 154

• Court: Court of Appeals of Maryland
• Writing for the Court: Before BRUNE; DELAPLAINE
• Citation: 113 A.2d 919,207 Md. 308
• Parties: George A. PIPER and Elleen C. Piper v. Melvin L. JENKINS and Eva C. Jenkins.
• Docket Number: No. 154,154
• Decision Date: 18 May 1955

Page 308

207 Md. 308 113 A.2d 919 George A. PIPER and Elleen C. Piper
v.
Melvin L. JENKINS and Eva C. Jenkins. No. 154. Court of Appeals of Maryland. May 18, 1955.

Page 311

[113 A.2d 920] David E. Betts, Rockville, Thomas R. Brooks, Hyattsville, and Charles W. Prettyman, Rockville, for appellants.

Edward C. Bell, Jr., Hyattsville (Green, Babcock & Bell, Hyattsville, on the brief), for appellees.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

DELAPLAINE, Judge.

This suit was entered in the Circuit Court for Prince George's County by George A. Piper and wife, of Silver Spring, against Melvin L. Jenkins and wife, of Laurel, to recover damages resulting from fraud alleged to have been committed in the sale of a lot improved by a dwelling in Montgomery County.

Plaintiffs alleged in their declaration: (1) that on October 22, 1947, Piper entered into a contract to purchase from defendants a lot of ground in Montgomery County for the sum of $7,500, and on November 19,

Page 312

1947, plaintiffs made settlement in accordance with the terms of the contract and the title was conveyed to them; (2) that before entering into the contract Jenkins [113 A.2d 921] walked over the land with Piper and pointed out to him a garden east of the house on the lot and specifically represented that the east boundary line of the lot ran about one foot east of the garden, thereby representing that the improvements on the lot are entirely within the boundaries of the lot; (3) that in February, 1952, plaintiffs discovered that the improvements are not entirely within the boundaries of the lot, but on the contrary the north line of the house projects upon the adjoining lot for a distance of 3.87 feet on the north side and 8.25 feet on the south side; and (4) that the representation made by Jenkins was a material misrepresentation of fact made with knowledge of its falsity or with reckless disregard for its truth or falsity.

Defendants filed the general issue plea and a plea that the cause of action did not accrue within three years prior to the institution of suit. They also filed a motion for summary judgment on the ground that there was no genuine dispute as to any material fact relating to the issue. Plaintiffs replied that the cause of action did accrue within three years prior to the institution of suit. Defendants demurred to the replication. The Court sustained the demurrer and entered judgment in favor of defendants. Plaintiffs appealed from the judgment.

In the leading English case of Derry v. Peek, L.R. 14 App.Cas. 337, 58 L.J.Ch.N.S. 864, 61 L.T.N.S. 265, 12 Eng.Rul.Cas. 250, Lord Herschell said: 'First, in order to sustain an action of deceit there must be a proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shown that a false representation has been made (1) knowingly or (2) without belief in its truth or (3) recklessly, careless whether it be true or false.'

In the United States there is a diversity of opinion as to liability for unintentional misrepresentation. In

Page 313

many States, including New York, Derry v. Peek has not been followed. But in New York and the other States where liability for unintentional misrepresentation has been broadly affirmed, there must be such a relationship that one party has a right to rely for information upon the other, who owes a duty to give it with care. Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 23 A.L.R. 1425.

The Maryland Court of Appeals, following the decision in Derry v. Peek, has held that a false statement of fact made by a person honestly with a belief in its truth, and relied upon by the person to whom it is made, does not constitute such fraud as will support an action for deceit. Donnelly v. Baltimore Trust & Guarantee Co., 102 Md. 1, 61 A. 301; Holt v. Kolker, 189 Md. 636, 639, 57 A.2d 287. It has been held, however, that an action will lie for personal injury resulting from reliance upon statements which negligently volunteer an erroneous opinion made with intention that it be acted upon and with knowledge that injury would likely result if acted upon. Virginia Dare Stores v. Schuman, 175 Md. 287, 1 A.2d 897.

We hold that a purchaser of land has a right to rely upon representations made to him by the vendor as to its location when the facts concerning which the representations are made are unknown to the purchaser; and the vendor can be held liable for damages if he makes a false representation as to its boundaries with knowledge of its falsity or with reckless disregard for its truth or falsity, and the purchaser relies upon it. Davis v. Nuzum, 72 Wis. 439, 40 N.W. 497, 1 L.R.A. 774; Hoock v. Bowman, 42 Neb. 80, 60 N.W. 389; Lawson v. Vernon, 38 Wash. 422, 80 P. 559; McFerran v. Taylor and Massie, 3 Cranch 270, 2 L.Ed. 436, 440.

We concede, of course, that if the vendor does not pretend to point out any boundary line specifically but merely expresses an opinion, or estimates the distance from a known point to an unknown point, the purchaser cannot rely upon such a representation as a fact but

Page 314

must ascertain the boundary lines for himself. Arnold v. Campbell, 265 Ky. 485, 97 S.W.2d 32; Gunther v. Ullrich, 82 Wis. 222, 52 N.W. 88; Davis v. Central Land Co., 162 Iowa 269, 143 N.W. 1073, 49 L.R.A.,N.S., [113 A.2d 922] 1219; Odell v. Story, 81 Neb. 437, 116 N.W. 269. Likewise, where the means of knowledge are at hand, and the purchaser undertakes to make an examination of the land records, he cannot say that he was deceived and injured by misrepresentations of the vendor. Shappirio v. Goldberg, 192 U.S. 232, 24 S.Ct. 259, 261, 48 L.Ed. 419.

But where the boundaries of land are unmarked and the vendor undertakes to point out the...