Thompson v. Bell

A. J. WALKER, C. J. It was permissible for the defendant to prove the.plaintiff’s misrepresentation as to the ; quantity of the half-section west of the Tallapoosa river. It is true that the bond for titles shows upon its face-that there was no covenant as to the quantity; but the rule which forbids that a written contract should be varied by parol evidence, has never been understood to exclude parol proof of fraudulent representation as to a material matter not covered by the stipulations of the written contract. There was, therefore, no error .in admitting the evidence of the misrepresentation as to “quantity. — Pierce v. Wilson, 24 Ala. 596; Dixon v. Barclay, 22 Ala. 370 ; Cowles v. Townsend & Milliken, 31 Ala. 134 ; Waddell v. Glassell, 18 Ala. 561; Hair v. La Brouse, 10 ib. 554; Litchfield v. Falconer, 2 Ala. 580; Paysant v. Ware & Barringer, 1 Ala. 166 ; Mead v. Steger, 5 Porter, 505 ; Cozzens v. Whittaker, 3 St. & P. 326. [2.] The measure of damages accruing to the purchaser of land, in consequence of a misrepresentation, is the excess of the value'-which it would have had, if it had corresponded with the representation, above the value which it .actually had; and the authorities say, that the price at which the purchase was.made, is evidence of value. But '.those authoiities do not mean, 'that the stipulated price is conclusive evidence of value. To make the price paid, or agreed-to be paid, the unbending test of the value upon the supposition of the truth of the’representation, would deprive the purchaser of the benefit of his bargain ; while it is well established,-that the parties to a contract, free from fraud, or other legal objection, are entitled to all ad-wantages which they may respectively obtain by it. — Stow v. Bozeman, 29 Ala., and cases there referred to. [443] Where the misrepresentation is as to the quality, the damages are readily ascertained, by inquiring what would have been the value, if there had been a correspondence in quality with the representation, and what is the actualvalue. But, where the false representation is as to the quantity contained within given boundaries, it is obviously proper that the law should- supply some farther aid for the ascertainment; of damages. A-witness could not answer what the value would have been, if there had been the number of acres represented; for,that would require the ascertainment of the value of the deficient quantity, which having no actual existence, and therefore of no assignable quality or defined location, could not be tested in reference to its value by the judgment of an expert. Hence it was that, in the case of Stow v. Bozeman, (29 Ala. 397,) where there was a mere difference between the actual and the represented quantity, this court laid down a rule to guide in the ascertainment of the excess of the value, if the representation had been true, above the real value. That rule was, to ascertain the average value per acre-of the tract, and multiply that by the number of acres .in the deficiency. Kelly v. Allen, 34 Ala. 663 ; Williams v. Mitchell, 30 ib. 299. In nothing said in Stow v. Bozeman is it intimated, that the price paid is the controlling standard of value. The .misrepresentation in this case was not as to the quantity in the aggregate of the land sold, but as to the quantity.in a distinguishable parcel of the land sold, described as so much of the south half of a particular section as lay west of the Tallapoosa river. The injury done to •the purchaser by the misrepresentation, was not that the entire tract did not contain the number of acres represented, but that there was a deficiency in the quantity of the particular parcel. It may be that the average value of the particular parcel is .altogether different from the average value of the entire tract. It may be that, in conse-quence of some peculiarity of location, or pervading quality, land in the particular .parcel may be of much greater or ..much less value than the average of the entire tract. .If [444] we- bear iru mind the leading principle which contrails’ in ascertaining? the damages — that the value upon the suppo*-sition of a correspondence with the representation is to be determined — it will- be apparent, that we are not to look,, in such a case as- this, to the average value of the entire , tract. We must ascertain-what would have been the value of the land bought, if the particular parcel had contained the quantity which it was represented to contain ; and the proper mode of ascertaining that is, to determine the average value of the particular parcel, and multiply that by the deficient quantity. The representation in this case seems to have embraced not only the quantity, but the character of a particular parcel. It was, that the two hundred acres were bottom land in the particular lot- It is obviously proper, therefore, that the average value of the lot should be determined upon the supposition that the land was of that character. The court below instructed the Jury to multiply the deficiency by the average value of the entire tract. This-would give too small a measure of damages, if the other land in the tract was of. less value than that of the particular parceland if we knew that to be the case, we would refuse to reverse on account of that error of the charge*, for it would be plain that the appellant had sustained no. injury. But we are not authorized by the bill of exceptions to say that the rest of the land was of less value than that to which the representation, refers- If there was any deficiency, in the preliminary proof upon which the surveyor’s testimony was admitted, it can, probably be supplied upon a future trial,, and we need not decide any thing in reference to it. The judgment of the court, below is-reversed,,.and. the., uause remanded.