Appeal
from Benton Circuit Court, EDWARD S. MCDANIEL, Judge.
STATEMENT
BY THE COURT.
This is
a suit by appellee to recover of appellant the sum of five
hundred and sixty-eight dollars, 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
counter-claim" 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
Arkansas, 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 the
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 three thousand 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 there
were only 325 Ben Davis bearing apple trees in said orchard
255 Winesap and 225 other varieties, or a total of about 800
trees, and only 880 3/4 bushels of apples in said orchard
770 1/4 of which were shipping apples and 110 1/2 culls,
worth at the price agreed upon, $ 440,37 1/2. The defendant
was damaged by the fraud aforesaid of the plaintiff the
difference between the contract price $ 1,100, and the sum of
said apples were actually worth, that is $ 440.37 1/2, which
would be $ 659.62 1/2. The defendant paid the plaintiff said
sum of $ 531.40 before defendant had discovered the extent of
the deficiency in said crop of apples, and has thus paid him
$ 81.02 1/2 more than plaintiff was justly entitled to.
Wherefore the defendant prays that plaintiff take nothing by
his suit, and that the allegations of defendant's answer
be taken and considered as a counter-claim against the
plaintiff for said sum of $ 81.02 1/2 on his counter-claim,
and [for] judgment for his costs in this suit, and for all
other proper relief."
The
cause was heard upon a demurrer which was as follows: (1)
That the answer admitted the execution of the written
contract, and attempted to evade it by setting up an entirely
different parol contract entered into prior to the written
contract, and sought to prove by parol conditions and
stipulations not set forth in the written contract, and which
were contrary to its terms. (2) The facts set forth in the
complaint are not sufficient in law to constitute a cause of
damage. The court sustained the demurrer, and the defendant
below refused to amend or plead further, but saved his
exceptions, and appealed.
Demurrer overruled.
1. The
court erred in sustaining the demurrer. There is nothing in
the first ground of demurrer. No attempt was made to
contradict or vary the written contract; the allegations were
simply explanatory. The counter-claim was based on false
representations inducing the contract, and this was a test
outside of the contract and provable by parol. 38 Ark. 334.
The false representations were material--they were made
knowingly, and with intent to defraud, and appellant relied
on them. Bigelow on Fraud, 522, has been disapproved by later
and better authorities, and it is now generally held that a
man may rely upon a positive representation of fact, and need
not make any further inquiry, although the means of knowledge
are open to him. Bigelow, Fraud, 523-528; Kerr on Fraud
80-81; 100 Mo. 397; S. C. 18 Am. St. Rep. 549 and notes; 38
Ark. 334; 8 Am. & Eng. Enc. Law, 811. These representations
were not merely...
