Vandewalker v. Osmer

By the Court, Mullin, P. J. 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 [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 [562] 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. [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.