Wheeler v. Baars

• Decision Date: 29 May 1894
• Citation: 15 So. 584,33 Fla. 696
• Parties: WHEELER v. BAARS.
• Court: Florida Supreme Court

15 So. 584

33 Fla. 696

WHEELER v. BAARS.

Florida Supreme Court

May 29, 1894

Appeal from circuit court, Escambia county; J. F. McClellan, Judge.

Action by Henry Baars against W. A. S. Wheeler. Judgment for plaintiff. Defendant appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. A false representation of a material fact, made with knowledge of its falsity, to a person ignorant thereof, with intention that it shall be acted upon, followed by reliance upon and by action thereon amounting to substantial change of position is a fraud of which the law will take cognizance.

2. The knowledge, by the maker of the representation, of its falsity, or, in technical phrase, the scienter, can be established by either one of the three following phases of proof: (1) That the representation was made with actual knowledge of its falsity; (2) without knowledge either of its truth or falsity; (3) under circumstances in which the person making it ought to have known, if he did not know, of its falsity. Under the first phase the proof must show actual knowledge of the falsity of the representation. Under the second phase it should show that the representation was made in such absolute, unqualified, and positive terms as to imply that the party making it had knowledge of its truth, and that he made such absolute, unqualified, and positive assertion on a subject of which he was ignorant, and that he had no knowledge whether his assertion in reference thereto was true or false. Under the third phase, the proof should show that the party occupied such a special situation or possessed such means of knowledge as made it his duty to know as to the truth or falsity of the representation made. If the proof establishes either one of these three phases, the scienter is sufficiently made out.

3. The requisite intent to deceive in such cases is to be inferred from the facts in proof.

4. The laches of a party to whom a misrepresentation of a material fact has been made, in failing to search public records or other accessible sources of information that would have disclosed the falsity of the representation made, furnishes no excuse or defense to the party guilty of the misrepresentation in an action for deceit thereon.

5. For deceit and false representations made by an agent in the course of his employment, both the principal and his agent are civilly liable; and, so far as the liability of the principal is concerned, it makes no difference whether he authorized or was cognizant of the misrepresentation and deceit of his agent or not.

6. It is the exclusive right of the jury to determine how much and what comparative weight they will give to the different kinds of evidence submitted in a cause; and it is error for the court to instruct them, as matter of law, that one kind of evidence is entitled to more or greater weight than another kind.

COUNSEL John C. Avery and Richard L. Campbell, for appellant.

Blount & Blount, for appellee.

OPINION

TAYLOR J.

Henry Baars, the appellee, sued the appellant in the circuit court of Escambia county in an action for deceit in the sale of a steam tugboat, and recovered judgment for $381.64, from which the defendant below appeals.

The original declaration contains four counts, in substance as follows: (1) That on March 28, 1884, the plaintiff bought of defendant, as trustee of Piaggio Bros., one steam tug called Jumbo, for a large sum of money, viz. the sum of $4,250, and that upon said sale the defendant falsely and fraudulently represented that said steam tug was free from all liens and incumbrances, whereas, in truth and in fact, there was a lien upon said tug for the sum of $246, of which said lien the defendant well knew, and of which plaintiff was ignorant. That, since said purchase, plaintiff has been compelled to pay the full amount of said lien in order to prevent a sale of the said tug to pay same, which lien, together with interest and costs of suit brought by the said lienholders to enforce same, and which plaintiff was also compelled to pay, amounts to $337.54. (2) The second count is substantially the same as the first, except that it alleges that the false representation by the defendant was made in order to induce the plaintiff to purchase said tug. (3) The third charges that the defendant, craftily and fraudulently intending to deceive the plaintiff and to benefit himself thereby, as agent of one Rinaldo Piaggio caused the plaintiff and others to purchase on March 28 1884, of the said Rinaldo Piaggio, a steam tug called Jumbo and, in order to effect said sale, falsely and fraudulently represented to plaintiff that the said tug was free from all liens and incumbrances, whereas, in truth and in fact, as defendant ought to have known, there was a lien upon said tug, and of which plaintiff was ignorant; and plaintiff has been compelled to pay the full amount of said lien, together with the costs of suit brought to enforce the same, amounting to $337.54. (4) The fourth count alleges that the defendant, as trustee for Piaggio Bros. and R. L. Campbell, on and prior to the sale of said tugboat to the plaintiff, falsely and wrongfully intending to deceive the plaintiff to his own profit and advantage, failed to inform plaintiff that there was a claim existing against said tug, although plaintiff particularly inquired of him whether there was any claim upon said tug, and although defendant knew at the time of said inquiry that W. F. & J. E. Creary had a claim against said tug for $242.06, and that they had brought suit thereupon; and that of the existence of said claim plaintiff remained ignorant until after his purchase of said tug; and that he was compelled to pay the judgment for $337.50 that said parties afterwards recovered on said claim against said tug, in order to save her from sale thereunder.

Before plea by the defendant, the plaintiff filed, as an amendment to his declaration, three additional counts, besides the common count for money had and received, in substance as follows: (1) That the defendant, as trustee for Piaggio Bros. and R. L. Campbell, negotiated with plaintiff's agent, one William Elias, for the sale of said steam tug to plaintiff, and that, during the pendency of said negotiations, that were consummated by a sale on March 28, 1884, of said tug to plaintiff, defendant falsely and fraudulently warranted said boat to be free from all incumbrances in the shape of claims, whereas, in truth and in fact, the firm of W. F. & J. E. Creary had a claim against the tug, which, since said sale to plaintiff, the circuit court of Escambia county and the supreme court of Florida (2 So. 662) have adjudged to be a valid lien upon said tug for materials and repairs amounting to $246.02, and plaintiff was compelled to pay the full amount of same, with costs of suit, amounting in all to $337.54. (2) The second additional count charges substantially that the defendant, as agent for Rinaldo Piaggio, while conducting negotiations that culminated on March 28, 1884, in the sale of the steam tug Jumbo by the said Rinaldo Piaggio to plaintiff, falsely and fraudulently warranted that no claims existed against said steam tug, whereas, in truth and in fact, a claim of W. F. & J. E. Creary for materials and repairs, amounting to $246.02, did so exist, which, since said sale to plaintiff, the circuit court of Escambia county and the supreme court of Florida have adjudged to be a valid lien upon said tug, and plaintiff has been compelled to pay same, with costs of suit brought to enforce same, amounting in all to $337.54. The third additional count of the amended declaration it is unnecessary to notice, as it was withdrawn by the plaintiff before the submission of the cause to the jury.

To the original and amended declaration the defendant pleaded the general issue of 'Not guilty,' and 'Never was indebted,' to the common count for money had and received.

The testimony for the plaintiff was as follows: William Elias deposed for the plaintiff that his occupation was that of a commission agent; that he resided in London, England. 'I acted as agent for Henry Baars, and, as such agent, entered into negotiations with defendant Wheeler for the purchase, on behalf of plaintiff, Henry Baars, of the steam tug Jumbo. Prior to said sale by Wheeler I did speak to him in regard to the existence or nonexistence of claims against said steam tug. I spoke to him on this subject a few days prior to the date on which the tug had been advertised for public sale in the Pensacola papers. I cannot now recall the exact date. The conversation took place in one of the rooms of the First National Bank, Pensacola, and Wheeler assured me that there were, with the exception of that of the First National Bank no claims of any kind against the said steam tug Jumbo, and he further said, in order to prove such assertion to be correct, that, had there been any claims, all claims would have been sent in to the First National Bank, as that institution had advertised said steam tug for sale by public auction in various papers, and there were no claims lodged. I made such investigation in regard to claims against said boat in the interest of Henry Baars, and at his special request. I certainly did not know at the time or before I was negotiating said sale from defendant to plaintiff of the existence of any claim against the Jumbo by W. F. & J. E. Creary, and I first heard of such claim being put in when Creary started an action against the tugboat Jumbo some long time after I had completed the purchase of said tug on behalf of the plaintiff, Henry Baars. The defendant, Wheeler, distinctly told me that, if I bought the tug, there were no claims out against her for which my principal, Henry Baars (not then known to Wheeler), would be...