West Florida Land Co. v. Studebaker

Liddon, J.:

The assignments of error which are argued, and a consideration of which seem necessary, are the first, third, sixth and eighth.

The first assignment of error is predicated upon the overruling of defendant’s demurrer to the declaration. The only argument against the declaration is, that it states a matter in which relief could only be obtained in a court of chancery. That misrepresentations of .the character stated in the declaration are actionable at law, is settled in this State by the case of Williams vs. McFadden, 23 Fla. 143 , 1 South. Rep. 613 . The *34 allegations that the representations were made by defendant through- its agent, does not make the defendant corporation less liable to the action. Principals, whether individuals or corporations, are, as a rule, although not criminaMter, yet cimliter, liable to third parties for the fraud and deceit of their agents when committed in the course of their principals’ business. Wheeler vs. Baars, 33 Fla. 696 , 15 South. Rep. 584 ; 1 Am. & Eng. Ency. of Law, p. 417, and authorities cited in note. The declaration under consideration is not so precise and exact as the forms found in the common law pleading in like cases, in that it does not specifically negative the truth of each alleged false misrepresentation. It seems, however, to be modelled upon the requisites of a declaration in such cases, as stated in Williams vs. McFadden, supra, and substantially alleges the falsity of the alleged misrepresentations, and we think is sufficient.

The appellant seems in his brief to mistake his second assignment for the third. We consider the argument as applying to the third assignment. The first amended pleas, to which the demurrer was sustained, were not numbered, and not separated as distinctly as the statute requires, but the latter part of it was clearly a “plea of not guilty'.” This was not an action on contract, but for fraud and deceit, independent of the contract sounding in tort, and the plea was a proper one under our statute (sec. 50, p. 824 McClellan’s Digest; Rev. Stats, of Fla., sec. 1076). The effect of such a plea is prescribed in Circuit Court Common Law Rule 71. It was error to sustain the demurrer to this plea.

, Issue having been joined and trial had'upon the set of pleas last filed, there having been no demurrer to the same, or any ruling thereon to which our attention *35 has been directed, we are not called upon to pass upon the legal sufficiency of these pleas. To save future litigation and trouble for the parties as well as the courts, we think it not improper to suggest to the parties that they again examine their pleas and see whether they have not gone to trial upon pleas that present immaterial issues in the case.

Upon the trial the plaintiff offered in evidence an article which had been published in a newspaper at West Milton, Ohio, by Dr. Chiles, the defendant’s agent, and by whom the misrepresentations sued upon were alleged to have been made. This article was an advertisement of the lands for which the said Chiles was agent. It does not contain any of the said representations about said lands which are alleged in the declaration to have been made by him, but contains other statements, some of which are perhaps mere expressions of opinion, which are never considered as fraudulent so as to be actionable, while others are statements of fact. It is stated in said article that he invites the reader “to the healthiest and most delightful climate under the sun;” that it was “the country for them and their families;” that they could “raise more there from twenty acres with less labor than from one hundred and sixty acres” in Ohio; that they could “pasture stock the year round and save expense of feeding;” could get “from two to three crops of farm produce each year;” could get “good prices and good markets;” “fruits of all kinds,” and “vegetables every month in the year. ’ ’ The advertisement further' stated that there was ‘ ‘no such thing as malaria or fevers of any kind;’.’ that “the water is pure, soft, sweet and plenty of it; no mosquitoes, and but few common flies;” “no snakes,” and other like representations. There is in the record no evidence contradicting these special *36 representations. They give a very glowing description of the country, but we do not think they are so highly improbable upon the face of them as to import wilful fraud or misrepresentation. When the article was offered in evidence it was objected to upon the' ground of irrelevancy. The plaintiff made no statement as to his intention to demonstrate the relevancy of the representations by showing their falsity by further proof in the case. In cases of fraud large latitude is allowed in the'admission of evidence, and that where fraud in the purchase or sale of property is in issue, other frauds of like character committed by the same parties at or near the same time are admissible. The admissibility of such evidence 1 ‘is placed on the ground that where transactions of a similar character, executed by the same parties, are closely connected in time, the inference is reasonable that they proceed from the same motive.” Lincoln vs. Claflin, 7 Wall. 132 ; Butler vs. Watkins, 13 Wall. 456 ; Castle vs. Bullard, 23 How. 172 , and cases collated in note, 8 Am. & Eng. Ency. of Law, 655. As the statements in the newspaper article do not of themselves import fraud upon the face of them, and as there is no proof in the case to show that they were false and fraudulent representations, they are not included within the principles stated, but were irrelevant to the issues of the case, and, under the circumstances stated, should have been excluded as irrelevant.

The defendant moved for a new trial upon the grounds, among others, that the verdict of the jury was contrary to the weight of the evidence, and that the damages were not proven on the trial. . In order to recover, the plaintiff must show what he lost by the' defendant’s deceit and fraud,-and the value of the land which he retains, to be deducted from the general *37 amount of the recovery. This value should be fixed approximately of the date of the coming into possession of fbe land by the plaintiff. As there is to be a new trial, we do not comment further upon the evidence than to say that upon this point it was very meagre and uncertain. Three witnesses were examined as to the value of the land. The evidence tends to show that “it was the poorest land in the whole ‘Country;'’ that “there had been good pine on the land, but it had been cut off;”' that it was “average piney woods land.” Two of the witnesses stated emphatically that they did not know the value of the land. Williams the tax collector, testified, without objection, that the commissioners assessed the land at $1.25 per acre, but did not state for what year. Two years had intervened between the date of the alleged false representations sued upon. It does not appear that the assessment by the commissioners was not made for the year in which the trial was held, nor whether the land was worth more or less than two years before. This evidence was entirely too uncertain and. indefinite to form the basis of an estimate by the jury of the damages suffered by the plaintiff. A new trial should have •been granted.

There is some difficulty in this case as to the proper ■measure of damages. From the record it appears that ■the plaintiff bought the land over which the controversy arises, for $1,200, of which amount he paid $400 in cash, and gave two interest bearing notes for $400 ■each for the balance, due respectively in one and- two years. At the time of bringing the action one of these notes was overdue, and the other likewise became overdue before the trial of the case. There is no positive •evidence whether these notes were paid or not. They were not offered in the case by way of recoupment, in *38 mitigation* of damages, or otherwise. Neither does it appear whether they are in the hands of the .defendant, the original holder, or have been transferred to some other party. The plaintiff does not offer to rescind the contract, or to surrender the land purchased,, but still retains the same, and seeks to recover damages for the tort practiced upon him. We do nt»t think his failure to pay the purchase money in full bars his right of recovery. Applebee vs. Rumery, 28 Ill. 280 ; Weaver vs. Shriver, 79 Md. 530 , 30 Atl. Rep. 189 . In Williams vs. McFadden, 23 Fla. 143 , 1 South. Rep. 618 , it is stated that ‘ ‘the rule for assessment of damages in an action of deceit for false representations concerning real estate is the difference between the actual value of the land, and its value if the alleged facts regarding it had been true. As already stated, there was no proof of the actual value of the land at the time of plaintiff’s purchase of the same, and no proof of what its value would have been if the representations had been true, otherwise than is indicated by the purcase price agreed, which is said to be strong, but not conclusive, evidence of the value of the property as represented. Page vs. Parker, 40 N. H. 47. A great many decisions hold the same rule as to the measure of damages as announced in Williams vs. McFadden, supra. In all of the cases, however, which we have examined (and we have examined a great number of them), the facts were that the purchase price of the land had been paid in full. Owing to the imperfect manner in which the facts of this case have-been presented, we do not feel called upon to express an opinion as to the rule for measure of damages where the purchase price of the land had been only partially paid, and whether or not it would be the same announced in Williams vs. McFadden, supra.

*39 For the errors pointed out the judgment of the Circuit Court is reversed and a new trial awarded.