Mock's Heirs v. Steele

A. J. WALKER, C. J. The bill shows, that the defendant Steele, upon his settlement as administrator, for the purpose of inducing the complainants not to object to the allowance of a particular credit, represented the correctness of the credit, and stated circumstances out of which it grew, plainly demonstrating its correctness; that the complainants, who were ignorant upon the subject, upon those representations forbore to object; that the contrary of the representations 'was true, to such an extent as to destroy the right to the credit, and that the credit was allowed. These allegations make out a case for relief, (the bill being filed within two years after the [200] settlement in the probate court,) under section 1915 of the Code. The error did not supervene in consequence of the fault or neglect of complainants. When a matter is equally open to the observation of both parties, or equally within the knowledge of both parties, it is a clear fault in one party to trust to the representations of the other, and he can not be heard to complain if misled by misrepresentations. — Townsend & Milliken v. Cowles, 31 Ala. 428. But, in this case, the party making the representations had peculiar opportunities of information, beyond the parties on the other side, who were totally uninformed upon the subject; and he, in effect, solicited their confidence, by making the representations with a view to obtain the forbearance of objections. They acted upon his representations, and reposed confidence in them. Can he now say, that it was a fault on their part to confide in him and in his representations ? If he can, it would establish a principle, which would license the commission 'of fraud in every case where the deceived party could have ascertained the incorrectness of the representations upon which he acted. We hold, that the defendant Steele cannot say that the complainants committed a fault in trusting to his representations. If the judgment, on account of the payment of which the credit was claimed, was paid by a sale of the property of George Walker, a co-maker with Steele’s intestate, it would not give the wife of George Walker a claim to contribution. The right to contribution, would belong to George Walker himself, and'the claim could only be discharged by a payment to him. The decree of the chancery court is reversed, and the cause remanded. StoNE, J., not sitting.