Haywood v. . Morton

Sohenck, J. As is frankly stated in his brief, the appellant relies chiefly for reversal upon his exception to the court’s refusal to allow his motion for judgment as of nonsuit. There was evidence to the effect that the defendant represented to the plaintiffs that the land conveyed by the deed from him to them contained 2,600 acres or more, and that the land so conveyed contained not more than 2,200 acres, and it was admitted by the defendant that he thought and told the plaintiffs that the two tracts of 12 acres upon which two tenant houses were situated were contained in the land conveyed, when as a matter of fact' they were not so contained, and there was further evidence from which it could be reasonably inferred that the defendant knew at the time he made the representations as to the acreage, and as to the tracts included therein, that such representations were false. It thus became necessary to submit to the jury the question as to whether the defendant had falsely and fraudulently represented to the. plaintiffs that the land conveyed contained 2,600 acres or more, and included the two tracts of 12 acres with the tenant houses thereon. It is the contention of the defendant that the plaintiffs had opportunity to have a survey made and thereby have ascertained the acreage of the land conveyed, as well as the tracts therein contained, and that the defendant should not be held liable for the plaintiffs’ folly or negligence in not ascertaining what land they were buying, and that the court should have either granted his motion for a judgment of nonsuit or directed a negative answer to the first issue. It is the contention of the plaintiffs that they forewent investigation because of the representations made by the defendant that the acreage was 2,600 or more, and included the two tracts of 12 acres with the tenant houses thereon, and that, therefore, since they relied upon representations which they allege were false, and made for the purpose of deceiving them, the issue of the defendant’s liability for the damage caused them by such false and fraudulent representations was properly left to the jury. The law applicable to this controversy is clearly stated in Ferebee v. Gordon, 35 N. C., 350, as follows: “When, therefore, in a contract of *238 sale the vendor affirms that which he either knows to be false or does not know to be true, whereby the other party sustains a loss, and he acquires a gain, he is guilty of a fraud, for which he is answerable in damages. When, therefore, sued for a deceit in the sale of an article, he cannot protect himself from responsibility by showing that the vendee purchased with all faults, if it appear that he resorted to any contrivance or artifice to hide the defect of the article or made a false representation at the time of the sale.” There was no error in submitting to the jury the question as to whether the defendant made false and fraudulent representations to the plaintiffs as to the acreage of land conveyed and the tracts included therein, as well also as to the scienter in making them. We have examined the assignments of error to the rulings of the court upon certain evidence, as well as those to portions of the charge, and find no error therein. No error.