Speed v. Hollingsworth

The opinion of the court was delivered by Horton, C. J.:

It appears that the trial court refused to permit the defendant below to offer any evidence in support of the allegations of his answer; upon the ground that the representations made to him by the vendor’s agents were expressions of opinion only, and further, that as the defendant was upon the premises before his purchase, he could have discovered, if he had been diligent, their falsity. The alleged false representations related to the quantity of the bottom land, the quantity of the land in corn, and to the rentals of the pasture land. Representations made by the seller of land of the quantity and the rentals thereof are something more than affirmations or expressions of opinion in regard to the property he is attempting to sell. They are matters lying peculiarly within his knowledge. (Davis v. Jenkins, 46 Kas. 19 ; Bowman v. Germy, 23 id. 306; Stevens v. Matthewson, 45 id. 594; Stewart v. Ranche Co., 128 U. S. 383 ; Paine v. Upton, 87 N. Y. 327 ; Belknap v. Sealey, 14 id. 144; Schumaker v. Mather, 133 id. 590; Nelson v. Carrington, 4 Munf. 332 ; Mitchell v. Zimmerman, 4 Tex. 75 ; Walling v. Kinnard, 10 id. 508; Antle v. Sexton, 27 N. E. Rep. 691; Hanson v. Tompkins, 27 Pac. Rep. 73 ; Dobell v. Stevens, 3 B. & C. 623, and Lysney v. Selby, 2 Ld. Raym. 1118; Sugd. Vend. [Perkins’s ed.] 248-378; Dimmock v. Hallett, 2 Ch. App. 21; Lord Brooke v. Rounthwaite, 5 Hare, 296.

*440

1. mj’bTcpresm” ier — action for

*439 In this ease, A. Hollingsworth, one of the agents of the seller, lived upon the land at the time the representations were made. Of course, he was intimately acquainted with the land, the number of acres of bottom land thereon, the number of acres of growing corn, and the rentals of the pasture. The ruling of the trial court, that the defendant had no legal *440 right to rely upon the false statements made to induce him to make the purchase of the farm, because he went upon the premises before his purchase, and might, by careful inspection, inquiry, survey, etc., have discovered their falsity, is contrary to the great weight of authority. Claggett v. Crall, 12 Kas. 393 ; McKee v. Eaton, 26 id. 226; Stevens v. Matthewson, supra; Davis v. Jenkins, 46 Kas. 19 . In the latter case, it was observed:

“If Jenkins, the purchaser, relied upon the representations, as alleged, and was thereby deceived, to his injury, he may recover for the damages sustained, although he might have ascertained by a further search and inquiry that the statements made by Davis were untrue.”

2. grantee-no defense. The trend of the decisions of the courts of this and other states is towards the just doctrine, that where a contract is induced by false representations as to material existent facts, which are made with the intent to deceive, and upon which the plaintiff relied, it is no defense to an action for rescission or for damages arising out of the de- , ° ° , ceit, that the party to whom the representations were made might, with due diligence, have discovered their falsity, and that he made no searching inquiry into facts. “It matters not,” it has well been declared, “that a person misled may be said in some loose sense to have been negligent. . . . For it is not just that a man who has deceived another should be permitted to say to him, ‘ You ought not to have believed or trusted me/ or ‘ Y ou were yourself guilty of negligence.’ ” (Big. Fraud, 523, 528, 534; Kerr, Fraud & M. 80, 81; Stevens v. Matthewson, supra; Davis v. Jenkins, supra; Wickham v. Grant, 28 Kas. 517 ; Pomeroy v. Benton, 57 Mo. 531 ; Wannell v. Kem, 57 id. 478; Redgrave v. Hurd, 20 Ch. Div.1; Gas and Coke Co. v. Gas and Electric Co., 59 N. W. Rep. [N. D.] 1066, and cases cited; Simar v. Canaday, 53 N. Y. 306 ; Schumaker v. Mather, 133 id. 590; Redding v. Wright, 51 N. W. Rep. [Minn., 1892] 1056; Ledbetter v. Davis, 121 Ind. 119 ; Gordon v. Parmelee, 2 Allen, 212 ; Mooney v. Miller, 102 Mass. 217 ; Furnace Co. v. Moffatt, 147 *441 id. 43; Erickson v. Fisher, 53 N. W. Rep. 638 ; Campbell v. Frankem, 65 Ind. 591 .)

False representations, to be actionable, must be as to a past or existing fact substantially or materially affecting the interests of the party, and relating to a matter as to which he may be presumed to confide, and is thereby in fact deceived. "Whether the defendant actually believed and relied upon the representations made to him, was a question of fact for the jury; and it was error for the court to decide, upon the allegations of the answer and the admissions made, that, as a matter of law, the representations were not actionable.

3. measuf?of The defendant was entitled, upon his answer, to show the representations made by the vendor’s agents concerning the quantity of bottom land, the quantity of land in corn, and the past and present rentals of the pasture, and the facts, if any, tending to show the falsity of these representations, and that he relied upon them and was induced thereby to purchase the premises described in the mortgage. If the defendant supports the allegations of his answer by sufficient evidence to show that in making the purchase he was deceived and defrauded, he may recover as a counterclaim for damages the difference between the real value of the premises at the date of his purchase and what they would have been worth at that time if the representations had been true. (Stevens v. Matthewson, supra; Gas and Coke Co. v. Gas and Electric Co., supra, and cases cited; Antle v. Sexton, 27 N. E. Rep. [Ill.] 691, and cases cited.)

We are referred by the attorney of plaintiff below to Graffenstein v. Epstein, 23 Kas. 443 , and Burns v. Mahannah, 39 id. 87, as supporting the judgment rendered. In those cases the misrepresentations concerned the market price of an article of general commerce. The market price was a matter of public knowledge. But in both of those cases it was observed, that “there were no circumstances making it the special duty of the seller to communicate the knowledge he possessed to the purchaser, and none giving him peculiar means of ascertaining the market price of the article sold.” *442 We have no disposition to extend the rule declared in those cases, and prefer to limit them to the facts disclosed therein.

The judgment of the district court will be reversed, and the cause remanded for further proceedings.

All the Justices concurring.