Shell v. Roseman

• Decision Date: 03 May 1911
• Citation: 71 S.E. 86,155 N.C. 90
• Parties: SHELL. v. ROSEMAN.
• Court: North Carolina Supreme Court

71 S.E. 86

155 N.C. 90

SHELL.

v.ROSEMAN.

Supreme Court of North Carolina.

May 3, 1911.

1. Fraud (§ 20^*)—Misrepresentations Concerning Quantity of Land—Right to Rely.

A purchaser's right to recover damages for misrepresentation that land contained 108 or 113 acres, whereas it actually contained 88 acres only, is not defeated because the corners afterwards embraced in his deed were shown to him.

[Ed. Note.—For other cases, see Fraud, Cent. Dig. §§ 17, 18; Dec. Dig. § 20.*]

2. Fraud (§ 20*)—Reliance on Misrepresentations.

A purchaser of land must guard himself against defects in title, quantity, and incumbrances, and has no legal remedy for damages where he is guilty of negligent failure to use proper diligence; but he can recover for misrepresentations by the vendor, reasonably relied upon and constituting a material inducement to the contract, if they were false to the vendor's knowledge, and caused damage to the purchaser, and if the latter has acted with ordinary prudence.

[Ed. Note.—For other cases, see Fraud, Cent. Dig. §§ 17, 18; Dec. Dig. § 20.*]

3. Fraud (§ 58*)—Misrepresentations—Evidence—Sufficiency.

Evidence held to show fraudulent misrepresentations by a vendor concerning quantity of land sold, affording an action for deceit.

[Ed. Note.—For other cases, see Fraud, Cent. Dig. §§ 55-59; Dec. Dig. § 58.*]

4. Evidence (§ 588*)—Inconsistent Statements of Witness—Effect.

A witness' statement on cross-examination as to a material matter, conflicting with his testimony in chief, affects his credibility only, and does not warrant withdrawing his evidence from the jury.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2437; Dec. Dig. § 588.*]

Appeal from Superior Court, Iredell County; J. S. Adams, Judge.

Action by John W. Shell against M. I. Roseman. Judgment for plaintiff, and defendant appeals. Affirmed.

This action is to recover damages for a false and fraudulent representation in the sale of land. The plaintiff offered evidence tending to prove that the defendant agreed to sell him a tract of land, known as the Christopher place, for $1,600; that the plaintiff did not know the boundaries of this place; that the defendant agreed to have the land surveyed before the deed was made, and to notify the plaintiff, so that he might be present at the survey; that the defendant had the survey made, but gave no notice to the plaintiff, and by the survey there were found to be 108 acres in the Christopher place, and 88 acres in the deed afterwards made to the plaintiff; that after the survey the defendant showed the plaintiff certain corners and made the deed according to those corners, but did not show him the corners of the Christopher place, and did not tell him the corners shown to him did not embrace all of the place; that the defendant made the deed to the plaintiff, conveying 88 acres, a part of the Christopher place, and in the deed it is stated that it contains 113 acres, more or less, and the plaintiff swears: "I relied on his (defendant's) statement that Exhibit B (the deed made by defendant to the plaintiff) covered all of the Christopher place, and that there were 113 acres." There was evidence to the contrary, and on cross-examination the plaintiff said: "I don't remember his telling me how many acres there were in the tract. It was always spoken of as 113 acres." There was a verdict for the plaintiff, and the defendant appealed.

W. D. Turner and J. B. Armfield, for appellant.

ALLEN, J. The defendant relies on two exceptions in his brief, and all others are waived. The first is to the refusal to charge that there was no evidence of fraud, and the second to failure to give the following instruction: "If the jury shall find from the greater weight of the evidence that, before the delivery and acceptance of the deed from the defendant to plaintiff, the plaintiff and the defendant went upon and looked over the land, and that the defendant, Roseman, showed to the plaintiff, Shell, the lines and corners of the land defendant was selling to plaintiff, and if the jury shall further find from the greater weight of evidence that the deed delivered by Roseman and accepted by Shell covered the identical lands so pointed out, and the identical lines and boundaries, and that the plaintiff, at the time of the acceptance of the deed, knew what land he was getting and the lines and boundaries thereof, then you will answer the second issue, 'No.' "

The two exceptions present only one question for determination, and that is, was there evidence of fraud, fit to be submitted to the jury, because the facts embodied in the prayer, the basis of the second exception, were admitted by the plaintiff; and if, upon these facts, in connection with the other evidence, the jury must answer the second issue, "No, " there was no evidence of fraud.

We do not think it was necessarily fatal to the action of the plaintiff that the corners, afterwards embraced in his deed, were shown to him. If he had known thecorners of the Christopher place, or had known there were only 88 acres within the lines shown him, he...