Neely v. Rembert

Wood, J. (after stating the facts.) The fact that Rembert began an inspection of the plantation before his purchase gives us pause. For, says Mr. Pomeroy, the plainest motives of expediency and justice require that such a one “should be charged with all the knowledge which he might have obtained had he pursued the inquiry to the end with diligence and completeness. He cannot claim that he did not learn the truth, and that he was misled.” 2 Pomeroy, Eq. Jur. § 893. One ground of the rule is stated to be the practical impossibility, in any judicial proceeding, of ascertaining exactly how much knowledge a party who has examined before purchase has obtained by his inquiry, and the opportunity which a contrary rule would give to a party of repudiating an agreement or other transaction fairly entered into, with which he had become dissatisfied. Id., note. But we have reached the conclusion that the finding of the chancellor that Rembert abandoned further inspection of the place, with the view of purchase, after the discovery of coco, is not clearly against a preponderance of the evidence. We say “the finding of the chancellor,” for, unless he found this, there is no warrant in law for the decree. Rembert testified that when he discovered the coco he determined that he would not buy the place. He may have, concluded at that time, from ihe remark of Cobb “that the coco was on that part of the place” (waiving his hand in a certain direction), that the coco was over that entire portion of the place, being about 150 acres. At any rate; Rembert says that after this he only went with Cobb to examine the 320 acres of woodland, at Cobb’s request. Cobb corroborates Rembert that, after the discover}1' of the coco, he (Rembert) “seemed to take no further interest in the place,” and went with him!(Cobb) to inspect the woodland at his request, and that they made no other inspection. Rembert said he did not want a place with coco on it, and he made no inquiry about boundaries, and he did not ride over or inspect any other woodland, or any other portion of the place. So, we conclude that Rembert sincerely abandoned all intention of purchasing the place and further inspection thereof after the discovery of the coco, and that what inspection he had already made was not sufficient to enable him to determine for himself either the quantity or quality of the plantation which he afterwards purchased; and that, as to these, he relied and had the right to rely, upon the representations of Neely. In this view, appellee’s case meets every test prescribed by this court for maintenance of suits of this character, which tests are as follows: “a. Was.the fraud material to the contract; did it relate to some matter of inducement to the making of the contract? “b. Did it work an injury ? “c. Was the relative position of the parties such, and their means of information such, that the one must necessarily be presumed to contract upon the faith reposed in the statements of the other ? “A. Did the injured party rely upon the fraudulent statements of the other, and did he have the right to rely upon them, in full belief of their truth?” Matlock v. Reppy, 47 Ark. 148. The representations, or, rather, misrepresentations, of Neely as to the area of the plantation were material. He represented, by his deed, that the plantation conveyed contained 3,078.05 acres, more or less. The actual survey showed 2,545 acres, or a difference of 533 acres. He represented the cleared land in actual cultivation to be eleven or twelve hundred acres, whereas the actual survey showed 900 acres. Rembert wanted a plantation that contained at least three thousand acres of land susceptible of cultivation. Instead, he gets a plantation containing 2,545 acres in all, and with not more than fifteen or eighteen hundred susceptible of cultivation. These discrepancies are too great to be remedied by abatement in the purchase price, or by suit on warranty. They go to the very foundation of the contract of purchase, and shatter it. They were material inducements to the contract, and were such as to deprive the appellee substantially of the benefits of his purchase. Fitzhugh v. Davis, 46 Ark. 337. The same may be said, also, of the representations concerning the coco grass. Oswald v. McGehee, 28 Miss. 340. Appellant contends that the false representations are not ground for equitable relief in this action, “unless the vendor knew them to be false, and the vendee had no means of discovering their falsity.” This is not the law applicable to positive statements or representations of fact (and not of opinion) which were substantial inducements of the contract. “A vendor who makes a false statement regarding a fact material to the sale, either with knowledge of its falsity, or in ignorance of its falsity, when from his special means of information he ought to have known it, and thereby induces his vendee to purchase, to his damage, is liable, in action at law, for the damage the purchaser sustains through the misrepresentation, or to have the sale rescinded in a suit in equity, at the option of the purchaser.” Moline Plow Co. v. Carson, 72 Fed. Rep. 387, and numerous authorities cited in appellee’s brief. The court did not err in setting aside the finding of the master as to rents. The court doubtless concludes, from the testimony of Neely as to what this place rented for in connection with another place and as to the number of bales of cotton raised on the place each year, that its fair rental value was fifteen hundred dollars per year. We do not see that the court’s finding is clearly erroneous. Nor did the court err in disallowing appellee’s charge for improvements. These were made when he knew, or should have known, that he would seek a rescission of the sale of on account of the presence' of the coco grass. Appellee’s expenses for moving on the place were too remote. They cannot be considered as the direct and proximaté result of appellant’s misrepresentations. Appellee was under the necessity of moving somewhere, and would have done so, even if he had not moved on the plantation bought of appellant. We find no error upon the whole case, and the judgment is therefore in all things affirmed.