Vandewalker v. Osmer — 65 Barb. 556

Majority

p. 556

Vandewalker vs. Osmer.

Headnote

A representation, made by a vendor, respecting the property sold, may relieve the purchaser from the use of that care, caution and observation that he would be bound to exercise if no representation were made.

While it is true that a purchaser may, by relying on the representations .of the vendor, be misled, and omit to make that careful examination of the property that a prudent man would and should make, yet a jury should require the clearest proof that the purchaser was induced by the representation to omit to examine the property.

It will not do to permit a vendee, having the properly before him and defects in it plainly discoverable, to shut Ms eyes and ears and omit to use Ms senses, and pretend that he relied on the representations, and was thereby misled.

In cases of warranty, an obvious defect is not cured by the warranty; because the law requires the purchaser to examine the property with (hat degree of care and skill that men generally are capable of exercising, in respect to property they are proposing to purchase. The same principle should apply in cases of false representation. If the property is not present, the purchaser may rely on the representation; hut if the property is present, and nothing is said or done hy the vendor to induce the purchaser not to examine it, and the falsity of the representation is palpable to the senses, the purchaser cannot be permitted to omit examination, and justify Ms omission hy the representation.

In an action to recover damages for false and fraudulent representations, made hy the defendant, that there were no daisies or other foul weeds on a farm owned hy Mm, and which the plaintiff was negotiating with Mm to purchase, the plaintiff proved that in answer to an inquiry whether he knew of any farm for sale, the defendant said he had one to sell; and being asked if it was free from foul weeds, such as daisies, «fee., replied that it was. The plaintiff said he would go and see the farm; that if there were any daisies on it, he did not want it. The plaintiff visited the farm two or three times afterward, and on each occasion asked the defendant whether there were any daisies &e. on the farm, and was answered in the negative. The plaintiff swore that he relied on these representations ^ and that wMIe on the farm he did not look for daisies, nor think of them; that he might have seen them on the plowed ground, had he thought to look for them.

Held, 1. That had the plaintiff made the purchase of the farm on the representation made at the first interview, and without going upon the land, he could, with great propriety, say he relied upon the representation; but that when he went on to the farm, and had an opportunity to ascertain whether there were daisies upon it, and did not give the slightest attention to them, he ought not to he permitted to recover ; unless it appeared that the daisies could not then be discovered.

2. That the evidence in regard to the difficulties in the way of the plaintiff’s

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ascertaining whether there were daisies on the farm, should not he permitted to excuse him from the duty of examining, in order to discover whether there were or were not daisies upon it, after his admission that he could have seen daisies in the plowed ground, if he had thought to look for them. Talcoir, J., dissented.

HIS action, was brought to recover damages of the defendant for false and fraudulent representations made by him, that there were no daisies or other foul weeds on a farm owned by the defendant, and which the plaintiff was negotiating with him to purchase.

The plaintiff was a witness in his own behalf, and testified that on the 25th of September 1870, he met the defendant in the city of Watertown, and asked him if he knew of a farm for sale in his neighborhood ; the defendant replied he had one. The plaintiff asked him if it was free from foul weeds, such as daisies, mustard and all such; he said it was. The plaintiff then said, he would go up and see it. The plaintiff told him if there were any daisies on the farm he did not want it. The defendant said it was free from daisies and all foul weeds.

The plaintiff further testified that he relied on this representation. He went to the farm on two or three occasions subsequent to this interview, and before completing the trade went over parts of it, where daisies were growing, but did not see them, nor think of them. He did not then know daisies, unless they were in flower, and although he had them in his mind while on the farm, did not see them.. Evidence was given tending to prove that at the time the plaintiff examined the farm daisies could not be seen, because the season was a dry one, and cattle in such seasons eat the daisies.

On these occasions when he visited the farm for the purpose of examining it, he put the same questions to the defendant, as to the weeds, and especially daisies, being on the farm, and received each time substantially the same answers.

p. 558

The witness was asked the following questions, and gave the following answers thereto, viz :

“When you was on the farm two or three days after, you had not relied upon his word up to that time, had you ? A. I had not really.

When did you commence to rely upon his word? A. I had not at all till after that.

Ton never had much reliance upon it, had you? A. No, I had not much ; yes, I had before that day we had the talk here, and up there.

Tell the jury why you deemed it necessary to have him make the representation again. A. Because I wanted to make it certain.

Were you not certain already ? A. I wanted it strong enough, so as to have it all right.”

Another witness was called, who corroborated the evidence of the plaintiff as to the representations made in the city; and another, who corroborated him as to the representations made at the farm.

Evidence was given, tending to prove that there were daisies on the farm at the time of the trade, and that they diminished the value of it. On the other side, the defendant was examined as a witness in his own behalf, and denied ever having made the representations testified to by the plaintiff and his witnesses; that there were daisies on the farm, and they could be seen by any one passing over the farm. Witnesses were called who testified that they were present on the occasions when the plaintiff was at the farm, and when he stated the false representations were repeated, and they did not hear any such representations made. Evidence was given tending to impeach the character of one of the plaintiff’s witnesses, who testified to hearing the representations made in Watertown, and evidence was given in support of his reputation. Evidence was also given tending to show that the daisies on the farm were plainly visible when

p. 559

the plaintiff went to examine it, and upon the amount of damages.

The judge, in his charge to the jury, told them that the first question for them to examine was whether the representations charged in the complaint were made, as sworn to by the plaintiff and his witnesses. If they found them to have been made they were to inquire whether they were false. If found to be false, the next question for them would be whether they were calculated to impose upon a prudent and careful man. If the defendant spoke in regard to the condition of the farm, he was bound to speak the truth; and if by these representations, that there were no daisies on the farm, he misled the plaintiff—induced him to omit to examine the farm, as he otherwise would have done—the plaintiff was not bound to exercise that degree of diligence wjiich he might have been bound to exercise if nothing had been said on the subject.

The jury was also told that if the representations were made and were false, and the plaintiff was misled by them, and he was induced by them to enter into the contract for the purchase of the farm, they were material.

They were further instructed to inquire whether the plaintiff relied upon these representations.

The defendant’s counsel excepted to the part of the charge in which the jury &as told that if the plaintiff was misled he was not bound to exercise that degree of diligence that would otherwise have been required of him; and he excepted to all that was said in the charge about putting the plaintiff off Ms guard, as having no predicate in the evidence.

The court told the counsel that if he deemed that the representations were not material he would submit that question to the jury.

The counsel excepted to the remark of the judge that it would be probable that the plaintiff would rely upon the representations.

p. 560

To this the judge replied that he would qualify the remark by saying it was a question for the jury whether a man, under the circumstances in which the plaintiff stood, would not rely upon the representations of the defendant.

The defendant’s counsel requested the court to charge that if the plaintiff had the means of ascertaining the true condition of this farm, with respect to daisies, and neglected to inform himself, this action could not be maintained. The court said that he would charge that, subject to the qualifications already made on that subject—that is, he must use such care and prudence as an ordinary, careful, prudent man would exercise, and in that regard the vendor must say or do nothing to mislead him.

To this qualification the defendant’s counsel excepted.

The jury rendered a verdict for $200; for which sum, with costs, judgment was entered. The defendant’s counsel moved for a new trial, and the motion was denied.

There is no error in the charge. The jury were properly instructed as to the law relating to fraud in the sale of property.

The request to charge presents the question, whether a representation made by a vendor relieves the vendee from that care, caution and observation that he would be bound to exercise if no representation was made; and it seems to me that it may. Reliance is, and must be, placed on the statements of men made to each other under circumstances in which they are required to speak, and to speak truthfully; and notwithstanding the degeneracy and depravity of the race, there are some who will put reliance on another’s word. And I trust the time is far distant when the courts will be compelled to assume that “ all men are liars,” and that they must not depend on anything they may say. If reliance is placed

p. 561

on. a representation made during a negotiation for the sale of property, it necessarily leads the other party to be less careful than he would be if the representation had not been made.

The object in asking for the statement of the vendor as to the quality of property is to obtain an assurance that it is as the purchaser desires it to be, and not unfrequently for the purpose of being relieved from making the examination which he would otherwise be obliged to make. And it is for this reason that the law stepped in and made the vendor liable to the vendee for such damages as he might sustain should the statement turn out to be false.

While it is true that the purchaser may, by relying on the representations of the vendor, be misled, and omit to make that careful examination of the property that a prudent man would and should make, yet a jury should require the clearest proof that the purchaser was induced by the representation to omit to examine the property.

It will not do to permit a vendee having the property before him, and defects in it plainly discoverable, to close his eyes and ears and omit to use his senses, and pretend that he relied on the representations, and was thereby misled.

In cases of warranty, an obvious defect is not covered by the warranty ; and it is because the law requires the purchaser to examine the property with that degree of care and skill that men generally are capable of exercising in respect to property they are proposing to purchase.

The same principles should apply in cases of false representation. If the property is not present, the purchaser may rely on the representation; but if the property is present, and nothing is said or done by the vendor to induce the purchaser not to examine it, and the falsity

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of the representation is palpablé to the senses, the purchaser cannot be permitted to omit examination and justify his omission by the representation.

Had the plaintiff made the purchase of the farm on the representation made in Watertown, and without going upon the farm, he could with great propriety say he relied upon the representation; but when he went on to the farm, and had an opportunity to ascertain whether there were daisies upon it, and did not give the slightest attention to them, he ought not to be permitted to recover, unless it be true that the daisies could not then be discovered, by reason of the drought, or having been eaten by the cattle.

Had the representation been that there was a fine large brick house upon it, but in fact it was a log hut, and before completing the purchase the plaintiff had gone to the farm and into the house, would a verdict in his favor for damages, by reason of the falsity of the representation, be permitted to stand ? I do not think that the evidence in regard to the difficulty in the plaintiff’s way, of ascertaining whether there were daisies on the farm, should be permitted to excuse the plaintiff from the duty to examine in order to discover whether there were or were not daisies upon it. He says he did not, when on the farm, attempt to ascertain whether there were daisies on it, because the subject did not occur to his mind; and yet he says, that on two occasions while at the farm he inquired of the defendant in relation to them, because he “wanted to be certain“he wanted it strong enough, so as to have it all right”

The plaintiff admits that he could have seen the daisies in the plowed land, if he had thought to look for them; and such is the evidence in the case.

I cannot resist the conclusion that the verdict is, on this branch of the case, without evidence to support it, and it should, for that reason, be set aside.

p. 563

[Fourth Department, General Term, at Buffalo,

June 3, 1873.

Mullin, Talcott and M. JD. Smith, Justices.]

I do not discover any error in the charge of the court.

The judgment should be reversed and a new trial ordered; costs to abide the event.

Talcott, J., dissented.

New trial granted.