Port v. Williams
| Decision Date | 30 May 1855 |
| Citation | 6 Ind. 176 |
| Parties | Port v. Williams |
| Court | Indiana Supreme Court |
From the Fayette Circuit Court.
The judgment is reversed with costs. Cause remanded.
J Rariden, for appellant.
J. A Fay and N. Trusler, for appellee.
Action on the case commenced in March, 1853, by Williams against Port for an alleged misrepresentation in the sale of lands. Verdict and judgment for 1,800 dollars. The evidence is all in the record in proper form.
It appears that Port advertised his farm for sale in one of the Cincinnati papers, representing it to contain seven hundred and twenty acres, of which four hundred acres were improved and in a high state of cultivation. Attracted by this notice Williams, prior to his purchase, repaired to Port's in person and examined the premises.
The alleged false representation made before the sale, but not embraced in the terms of the contract, was, that there were four hundred acres cleared; whereas it is averred that not more than three hundred and ten acres were cleared.
For this alleged deficiency in the quantity of cleared land, this action was brought.
A preliminary question might arise, whether the parties could go behind the writing--whether that would not be presumed to contain the whole mind of the contracting parties. Patterson v. Doe, 8 Blackf. 237.--Russell v. Branham, Id. 277.--Murphy v. Merry, Id. 295.--Harvey v. Laflin, 2 Ind. 477.--Railsback v. Liberty, &c., Turnpike Co., Id. 656.--Jacobs v. Finkel, 7 Blackf. 432. On the other hand, in ascertaining the facts as connected with the execution of any written instrument, parol evidence is admissible. Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326. But as its determination, even adversely to Williams, would not go to the merits of the case, but only serve to drive him into Court to reform the written contract, the material questions presented in the record may as well be met at once.
The first point raised is on striking out part of the answer. The paragraph which, on motion of the plaintiff, was stricken out, was, in substance, that before the contract, &c., Williams and Port went over the land with a view to estimate the quantity under cultivation; that Port's estimate was four hundred acres--Williams' less than three hundred; that thus the quantity of cleared land was unsettled--a mere matter of opinion with both.
The motion to strike out was sustained. This was erroneous. In any phase of the case, it was material to Port to be able to show that there was no warranty as to the quantity of cleared land; that it was a mere matter of opinion and discussion between the parties, with equal means of knowledge; and that their views were not concurrent. If Williams wished to test the sufficiency of this plea, he should have demurred. A motion to strike out does not perform the office of a demurrer, either under the old or new practice. Whether it was a sufficient defense to bar the action was wholly immaterial. It was, at least, such pertinent matter as the Court ought not to strike out on motion. It was not so irrelevant as to warrant that; it was not a sham defense. 2 R. S. 44. We are therefore of opinion that the Court erred in sustaining the motion to strike out.
The second question arises on the alleged misrepresentation as to the quantity of cleared land. The contract is silent on that point.
Had Williams, relying on the advertisement in the Cincinnati paper, purchased without seeing the land, the case would have come within the rule in Van Epps v. Harrison, 5 Hill 63. But the purchaser did not, in that case, make personal inspection. He trusted to the written representations of the vendee as to its condition, and consummated the contract without seeing the premises. Instead of being level and fit for building lots, as represented, it turned out to be broken and hilly. The Court held that for the misrepresentation, under these circumstances, an action would lie.
But this is a very different case. Williams did not trust to the Cincinnati advertisement. That seemed to have no other effect...
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