Clark v. Everhart

The opinion of the court was delivered, January 3d 1870, by Thompson, C. J. —

Assuming, for argument sake, that the letter which the court withdrew, after its admission in evidence, contained the assertion of a fact in regard to the mill being in excellent order, and not an opinion merely, it would be but a single step in raising the defence proposed, to wit: that the defendants purchased on the faith of its representations, and were deceived. This the latter asserted the letter would not show, for peradventure it was not read at all by Pearson, and may not have been discussed by either at the time of the purchase; and, peradventure they may have taken the opinions of others on the subject or examined for themselves. It must be borne in mind, that the learned judge only withdrew it after the counsel for the defendants below were asked, and answered that they had no testimony whatever to give to apply the letter to the result of the purchase, beyond the fact, that it had been written to Clark. It would therefore have been only a guess or surmise, that it had been the inducing cause of the purchase, and liable to be erroneous in the proportion of one possibility to a dozen of reasons why it was not so. This is not enough, on any settled principle. If false and fraudulent representations be alleged as the groundwork for avoiding a bargain, it must be shown that like poison it entered into, and mixing with, the vital essence of it, tainted and destroyed it. That must be proved by a just inference from what took place at or about the time of contracting, and is not to be supplied by surmises or things so equivocal in themselves as to be proof or not as the fancy might dictate. It might be by some imagined that these *350 purchasers, although the letter was written with no idea that they intended to negotiate for a purchase themselves, they applied its assurances to themselves, and on its faith looked no farther but contracted; by others it might be readily believed that it was a representation only to induce people to look at the property and buy if they were suited; that it could hardly have been with a view to influence the defendants to purchase, as they were not in negotiation for it, and the information was drawn out by one of them as agent, and that it would be unreasonable to suppose that a purchase would be made amounting to so much money without examination or guaranty, if not examined, as to its condition; and many would also be likely to think that if the representation was the moving inducement, it was strange that the contract was closed at $750 less than asked, including commissions to one of the purchasers, unless other considerations besides the letter had brought about the result; these considerations show the utter worthlessness of the letter itself in proving the inducing cause of the contract. Eor such a purpose, if it cast light at all, it was a most uncertain light.

“ Undoubtedly,” says Gibson, C. J., in Fisher v. Worrall, 5 W. & S. 478 , “a vendor may praise to the most extravagant extent qualities which are susceptible of inspection ; but the misrepresentation' of an occult quality in regard to which the vendee is not supposed to buy on his own judgment, would be followed by very decisive consequences.” Whether a mill is in good or bad order, is not an occult quality. It is almost as susceptible of discovery by common observation as a farm, certainly so, by persons acquainted with machinery. The defendants may, for aught that appears, have been well acquainted with it, if not it was easy to be informed by others who were. In Phipps v. Buckman, 6 Casey 401, the rule is stated that even a false statement of a material matter will not overthrow a bargain unless the statement was the means producing it. “ This is especially true,” says Porter, J., “ where the statement embodies the result of an opinion, and where the means of knowledge are equally accessible to both parties.” Where parties treat on the basis of trust and confidence either as to occult qualities, or for any other reason, the rule is to hold the party making the representations bound by them; but that relation is never presumed in ordinary transactions, where each may inform himself. In such cases the relation and deception must both be proved to set aside an agreement. The letter here as the causa eausans was without proof, and did not afford the inference; and, therefore, the contract was not to be affected by it. We do not regard Miles v. Stevens, 3 Barr 21, as shedding any reliable light on the question evoked here. Indeed, in its extent it has not been followed, as was said in Pennock v. Tilford, 5 Harris 456. We think the learned judge below administered the law *351 accurately in rejecting the proof of the cost of repairs proffered, and in withdrawing from the jury the letter which had been read, and that the judgment must be affirmed.