Shanks v. Whitney
| Decision Date | 05 March 1894 |
| Citation | 29 A. 367,66 Vt. 405 |
| Parties | JAMES W. SHANKS v. E.T. & M.A. WHITNEY |
| Court | Vermont Supreme Court |
JANUARY TERM, 1894
Case for deceit in the exchange of real estate. Plea, the general issue. Trial by jury at the September term, 1892, Windham county, MUNSON, J., presiding. Verdict and judgment for the plaintiff.
Judgment affirmed.
Haskins & Stoddard for the defendants.
To constitute actionable fraud or deceit in the sale of property, the false representations or concealments must be of existing facts--not of facts that will exist, nor of promises, nor of matters of judgment, nor of opinion--relating to the subject matter of contract affecting its essence and substance, known to be false by the vendor, not open to the knowledge of nor known by the purchaser, made by the vendor, and relied upon by the purchaser, as inducements to the contract. Childs v Merrill, 63 Vt. 463; Palmer v. Bell, 85 Me 352; Burns v. Dockray, 156 Mass. 135; Nash v. Minn. TitleIns. Co., 159 Mass. 437, 34 N.E. 625.
I. Tested by this rule, did the evidence have a tendency to establish a right of recovery in the plaintiff? The subject matter of the contract, so far as needful to be considered here, was the equity of redemption in a building lot and the building thereon in the city of Boston. The premises were subject to a large mortgage which will fall due in less than three months after the contract of purchase. Before entering upon negotiations, the plaintiff informed the defendants that the value of the equity of redemption to him would be nothing unless the mortgage could be replaced. Hence representations on the subject of replacing the mortgage were made material by the terms of the negotiations, and the value of the equity in the premises was made dependent upon whether the mortgage when due could be replaced, and whether at a lower rate per cent. Its value also was dependent upon whether the occupation of a portion of the lot for a street and sidewalk was under such circumstances that the city was legally liable to pay for its use of it. In reference to replacing the mortgage, the plaintiff's testimony was to the effect that the defendant represented that he then had a man who was ready to replace the mortgage, when it became due, at a lower rate of interest, and that he could turn this opportunity over to the plaintiff. He also represented that the occupation of a portion of the lot by the street and sidewalk was under such circumstances that the city was legally liable and ready to pay therefor. The testimony tended to show that the defendants knew that these representations were false, and that they made them to induce the plaintiff to make the contract; that the plaintiff did not know, nor have reasonable means of ascertaining, their falsity, and was induced by them to enter into the contract. Hence the defendant was not entitled to have a verdict ordered in his favor, as he requested.
While these representations, found to be false by the verdict of the jury, led up to and induced the making of the contract, they were not provided for, nor attempted to be provided against, by the contract nor by the deed, and therefore were not merged in them. The deed conveyed the portion of the lot covered by the street and sidewalk, and doubtless conveyed any claim existing against the city, for taking this portion of the lot for highway purposes. The deed has not been furnished to this court, nor is it shown, whether it contained covenants against the occupation of this portion of the lot for highway purposes. We cannot assume it did. The non-existence of this claim against the city for such occupation occasioned the damages on this point. Without a covenant in the deed against the use of this portion of the lot for highway purposes--which cannot be assumed--this cause of action did not become merged in the deed. Hence the contention for a merger of either of these causes of action in the contract or deed, is not sustained.
II. Nor did the court err in rejecting the testimony offered to be shown in recoupment, on the ground that the plaintiff misrepresented in regard to the market value of the farm which he conveyed to the defendant in exchange for his property. Such representations are matter of opinion and non-actionable. Each party must be held to form and act upon his own opinion in regard to the market value of the property, which he either examines or has an opportunity to examine. In thus holding, whether recoupment applies to actions of tort, is not considered.
III. The defendant contends that there was a variance between the allegations in the writ and the plaintiff's...
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