Wilman v. Mizer

• Decision Date: 23 February 1895
• Citation: 30 S.W. 31
• Parties: WILMAN v. MIZER.
• Court: Arkansas Supreme Court

30 S.W. 31

WILMAN v. MIZER.

Supreme Court of Arkansas.

February 23, 1895.

Appeal from circuit court, Benton county; Edward S. McDaniel, Judge.

Action by John Mizer against R. Wilman. From an order sustaining a demurrer to the answer, defendant appeals. Reversed.

This is a suit by appellee to recover of appellant the sum of $568, on a certain written contract of sale whereby appellant agreed to purchase of appellee "the apples in his orchard, consisting of about twelve hundred trees, for the sum of eleven hundred dollars." The contract provided for barreling by the appellant, and gathering and hauling by appellee under the directions of appellant. The complaint sets up the contract, alleges compliance on part of appellee, and a failure upon the part of appellant to pay the balance of $568 for which judgment is asked. The appellant filed what he denominated his "Answer and Counterclaim," as follows: "He admits that he entered into the written contract with plaintiff set forth in the complaint, and that he has paid to the plaintiff for apples delivered under said contract $531.40, and refused to pay more. At the time said contract was made, the defendant, who resides at St. Joseph, in the state of Missouri, was engaged in buying apples in Benton county, Ark., for shipping purposes. He was unacquainted with the bearing capacity of plaintiff's orchard or other orchards, had no experience in estimating the number of bushels of apples in an orchard or on an apple tree before the same were gathered, and did not purchase the apples in plaintiff's orchard upon his (defendant's) knowledge or opinion as to the number of bushels therein. The price which defendant agreed to pay for said apples was 50 cents per bushel, and the consideration of $1,100 named in said contract was arrived at on a basis of 2,200 bushels of apples supposed by defendant to be in said orchard on the trees, ungathered, at the time. The premises on which said orchard was situated had been owned and occupied by plaintiff for a great many years. He had raised, gathered, and sold many crops of apples from said orchard; professed to know, and did know, the number of trees therein of different varieties; was familiar with the bearing capacity of the orchard; and was able, by an inspection and examination of the orchard and a comparison with previous years, to closely approximate the number of bushels of apples in the orchard. The defendant, on the other hand, being unable, by reason of his lack of experience and unfamiliarity with said orchard, to make an estimate approaching accuracy as to the number of bushels of apples therein, so informed the plaintiff before said contract was made, and further informed the plaintiff that he should rely upon the plaintiff's knowledge, judgment, and honor as to the number of bushels in the orchard. Thereupon the plaintiff, knowing that defendant was relying upon his (plaintiff's) judgment and honor, and professing to be able to estimate approximately the number of bushels of apples in said orchard, falsely and recklessly, and with intent to use the confidence thus reposed in him to his own advantage and to cheat and defraud the defendant, represented and stated to the defendant, to induce him to purchase said apples and agree to pay therefor said sum of $1,100, that he (plaintiff) believed there were 3,000 bushels of shipping apples in said orchard, and that he knew and could safely say there were as many as 2,200 bushels therein, and that there were 500 bearing Ben Davis apple trees in said orchard, 375 winesap, and 350 other varieties, or a total of about 1,200; the plaintiff at the time knowing that such representations were false, or, at least, not knowing or believing them to be true. The defendant believed and relied upon these statements of the plaintiff, and was thereby induced to purchase said apples in said orchard, and agree to pay therefor said sum of $1,100. In truth and in fact...