Stout v. Martin
| Decision Date | 28 September 1920 |
| Docket Number | No. 3909.,3909. |
| Citation | 87 W.Va. 1 |
| Court | West Virginia Supreme Court |
| Parties | Stephen Stout v. Lyik Martin and Roy EdgEll. |
A defendant in an action before a justice of the peace, having a claim against the plaintiff therein for unliquidated damages, not in excess of three hundred dollars, arising out of the same transaction or contract upon which the plaintiff's suit is based, because of the provisions of § 55, chap. 50 of the Code, must set the same up in such suit, otherwise he will be thereafter barped from prosecuting any suit therefor; and in case the defendant is found to be entitled to recover, on account of such claim, an amount in excess of that to which the plaintiff is entitled on account of the claim sued on, he will be given judgment over against the plaintiff for the excess. (p. 3).
One who represents that a certain condition exists, when in fact he has no knowledge in regard thereto, will be liable to another who deals with him upon the faith of such representation, should it turn out to be false. (p. 5).
Where one purchases the timber upon a tract of land in reliance upon the representations of the owner as to the exterior boundary lines thereof pointed out upon the ground by such owner, which. turn out not to be the true lines, and the pur- chaser is deprived of a part of the timber he would have obtained, had the owner's representations been true, he will have a right of action against such owner, even though the owner did not at the time he made the representations know the true location of his boundary lines. (p. 5).
One who enters into a contract upon the faith of false representations made by the opposite contracting party, will not be denied the right to recover any damages he may sustain by reason of such false representations because he could have discovered the truth from other sources. (p. 5).
In an action for fraud and deceit, by the vendee of property, based upon false and fraudulent representations of the vendor, the true measure of damages is the difference between the value of the property actually received and its value had it been as represented. (p. 6).
One who purchases the timber upon a tract of land upon the faith of representations made to him by the owner as to the location of the exterior lines thereof, and loses some of the timber because such representations turn out to be false, is entitled to recover, in an action of fraud and deceit, the difference between the actual value of the timber he received and that which he would have received had the representations been true. (p. 6).
(Williams, President, absent.)
Error to Circuit Court, Wetzel County.
Action by Stephen Stout against Lyle Martin and another. Verdict and judgment for plaintiff, and defendants bring error.
Reversed and remanded.
John Ross, Jr., and Thos. H. Cornett, for plaintiffs in error. T. M. Mclntire, for defendant in error.
The plaintiff, in the year 1917, sold to the defendants the timber upon a certain tract of fifty-five acres of land owned by him, situate in Wetzel county, for the sum of three hundred dollars, of which two hundred dollars was paid, and a note given for the residue. Upon the failure of the defendants to pay this note suit was brought before a justice of the peace thereon, and upon appeal from the judgment of the justice to the circuit court of Wetzel county a judgment was rendered in favor of the plaintiff for the sum of $90.64, to review which this writ of error is prosecuted.
The defendants do not deny the execution of the note, but set up as a defense thereto that just before the time they made the purchase of the timber upon this tract of land one of them went over the same with the plaintiff, who pointed out his exterior boundary lines, and that relying upon the representations of the plaintiff in regard thereto they purchased the timber upon the tract of land; that thereafter when they proceeded to cut the timber a considerable part thereof was claimed by an adjoining owner, and that an investigation showed that one of the lines pointed out by the plaintiff was not the correct line, and that there was excluded a considerable tract of timber which the defendants, by reason of plaintiff's representations as to the location of his line, thought they were securing; that the amount of such timber which the defendants failed to secure was eighteen thousand feet, and that its value at said time upon the stump was at least ten dollars per thousand; and alleging that by reason of these false and fraudulent representations of the plaintiff, defendants were damaged to the extent of one hundred and eighty dollars, which they ask to set off against the plaintiff's demand, so far as such damages were required to cancel such demand, and to have recovery against the plaintiff for the residue.
Upon the trial of the case one of the defendants swore that he and the plaintiff went over this tract of land before the purchase was made, and the plaintiff pointed out the boundary lines to him; and further that in making the purchase he relied upon these representations; that as a matter of fact the representations so made were false, and that the defendants were deprived of at least eighteen thousand feet of timber which they would have gotten had the representations been true; that the value of this timber was at least ten dollars per thousand on the stump. The plaintiff denied that he made any representations as to the location of his boundary lines, and further testified that he did not know at that time where his exterior boundary line was at the point at which it is claimed he falsely represented its location. The court refused to admit defendant's evidence as to the value of the timber on the stump, and refused to allow them to prove the actual value of the entire tract of timber purchased by them, and the value of the tract actually cut by defendants, upon the theory that if defendants were entitled to recover any damages at all it would be an amount bearing the same proportion to the purchase price paid by them for the timber that the timber lost bore to the whole tract which they had expected to receive, while the defendants contend that the correct measure of the damages was the value of the timber actually lost to them, or rather the timber which they were unable to cut because it was not owned by the plaintiff at the time he made the sale.
The jurisdiction of this Court to entertain this writ of error is challenged upon the ground" that there is not involved as much as one hundred dollars, the argument being that the judgment of the court below is only for $90.64, and that inasmuch as the defendants could only set off their claim for damages against this judgment, and could have no recovery over on account of the matters set up by them in their notice or plea, in no event could the amount involved in this suit at this time be more than $90.64. If the assumption is true that the defendants could have no recovery over on account of the claim set up by them, this contention would perhaps be correct. It is true, the claim set up is in the nature of unliquidated damages growing out of the same contract upon which the plaintiff sues, and is in the nature of recoupment. This is an action, however, brought before a justice of the peace, and under the decision of this Court in the case of Bow dish v. Groscup, 70 W. Va. 758, if the defendants' claim for unliquidated damages does not exceed three hundred dollars, the amount of the justice's jurisdiction, they must set it up in a cross action when sued, or else be forever barred; and if the jury should find that they are entitled to recover more on account of the claim sot up by them in this way than the plaintiff is entitled to recover, there can be a recovery over for such excess, as in the case of an offset filed. This being true, the amount involved here is the amount of the claim asserted by the defendants, which the evidence tends to show exceeds the sum of one hundred dollars.
It is also suggested that the evidence introduced by the defendants in support of their claim for damages does not show that the plaintiff, when he made the alleged representations, knew that they were false. It is true the defendants' evidence goes no further than to show that plaintiff pointed out the location of his boundary lines, and that this location so pointed out was not correct as to one of said lines. Is there any necessity for proof that the plaintiff at the time knew that the line pointed out by him was not the true line? One who asserts as a fact a thing which he does not know to be true, upon the faith of which assertion another acts, may be just as guilty of fraud as though he had...
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...of real property may be liable to the vendee in an action for fraud. Averill v. Boyer, 76 W.Va. 642, 87 S.E. 259 (1915); Stout v. Martin, 87 W.Va. 1, 104 S.E. 157 (1920)." In Lengyel, suit had been brought to set aside the sale of a house based on a claim of fraudulent misrepresentation wit......
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...It is no excuse for him to say that he did not know they were false," citing in support thereof the decided cases of Stout v. Martin, 87 W.Va. 1, 104 S.E. 157; James v. Piggott, 70 W.Va. 435, 74 S.E. 667; Tolley v. Poteet, 62 W.Va. 231, 57 S.E. 811; Crislip v. Cain, 19 W.Va. In conclusion, ......
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