Carwell v. Dennis

Hart, J., (after stating the facts). 1. It will be noted that the plaintiff brought this suit to recover damages for alleged false representation in -making the contract, but no objection was made to the jurisdiction of the court by the defendant, and no motion was made to transfer the case to the circuit court. The chancellor treated the case as an action to rescind the contract for fraud, and entered a decree accordingly. Assuming that his action in this respect was within the scope of the issues as presented by the pleadings, we think his decision was wrong. The rule in such cases in this State is thus stated in Hill v. Bush, 19 Ark. 522: “That a misrepresentation, in order to affect the validity-1 of a contract, must relate to some matter of inducement to the making of the contract, in which, from the relative position of the parties and their means of information, the one must necessarily be presumed to contract upon the faith and trust which he reposes in the representations of the subject of the contract. For, if the means of information are alike accessible to both, so that with ordinary prudence or diligence the parties might respectively rely upon their own judgment, they must be presumed to have done so. Or, if they have not so informed themselves, must abide by the consequences of their own inattention and carelessness.” Again, in the case of Matlock v. Reppy, 47 Ark. 148, the court said: “Actions of this character should be subjected to four tests in order to determine whether they may be'maintained: (а) Was the fraud material to the contract; did it relate to some matter of inducement to the making of the contract? (б) 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? (d) Did the injured party rely upon the fraudulent statements of the other, and did he have a right to rely upon them, in full belief of their truth?” We think the whole substance of this transaction was an exchange of lands between the parties. It is true the plaintiff says that he sold his lands to the defendant for $4,000 and took as part payment his house and lot in Windsor, Mo., and the Virginia lands. He also says the defendant represented the Virginia lands as comprising 480 acres and that its value was $2,400. The defendant, however, flatly contradicts the testimony of the plaintiff. He states that he expressly told the plaintiff that he would not consider a purchase with dollars and cents as a consideration. He further states that it was agreed between them that the plaintiff would exchange his lands in Cross County for the defendant’s house and lot in Missouri, his Virginia lands and $500 in money. He says that he informed the plaintiff that he had never seen the Virginia lands, and knew nothing about them either as to their value or existence, except that he had a deed to them and certain letters in regard to their condition and situation; that he exhibited his deed and these letters to the plaintiff, and that the plaintiff then knew as much about the land as he did himself. Mr. Jordon, who prepared the contract between the parties, says that when the question of consideration came up the defendant told the plaintiff that he had never seen the Virginia lands, and did not consider them worth much, and did not know how to value them. The other witnesses for the defendant stated in substance that the plaintiff expressed himself as satisfied with the trade he had made and did not care how much the Virginia lands were worth. It also appears from the testimony that the value of the house and lot in Windsor, when added to the $500 paid to the plaintiff by the defendant, exdeeded the value of the Cross County lands at the time the trade was made. From all of these facts and circumstances, we think it appears from a clear preponderance of the testimony that the defendant told the plaintiff all he knew about the Virginia lands, and that he had no better means of knowledge as to their conditions and situation than he gave to the plaintiff. The parties therefore, dealt on equal terms with each other, and did not deal on a basis of trust and confidence. It follows that the chancellor erred in decreeing a cancellation of the deeds on account of the alleged fraudulent representation of the defendant. Neither do we think that the plaintiff was damaged by the fact of the nonexistence of the Virginia lands. It is established by the evidence that no lands of the description given in the deed were in the State of Virginia; but, as above stated, the plaintiff knew as much about the existence and value of these lands as did the defendant. From all the evidence except that of the plaintiff himself, it appears that these lands were not considered by the parties in making the trade to have any appreciable value. Neither party had any information as to their existence or value except that they were described in the deed which the defendant had and were also referred to in the letters which he showed to the plaintiff. It was expressly-understood between the parties that the plaintiff was simply to take his chances in regard to the Virginia lands, and as above stated they were not regarded as having any real value. We are strengthened in this view by the testimony of all of the witnesses in the case, except the plaintiff himself, that the house and lot in Windsor and the $500 paid by the defendant to plaintiff exceeded in value the Cross County lands at the time the exchange of property was made. Another significant f act is that the plaintiff never went to Virginia to examine these lands until after this suit was instituted. The consideration expressed in the deed of the Virginia lands is $2,400. Counsel for plaintiff urges that this is conclusive, and cites Carmack v. Lovett, 44 Ark. 180, where the court held that a party claiming under a deed that is attacked as fraudulent as to creditors can not support it by showing a different consideration from that expressed on its face. That case has no application to the state of facts before us, and the general rule applies. It is that the consideration named in a deed is only prima facie correct, and parol evidence is admisible to prove the real consideration. St. Louis & North Arkansas Rd. Co. v. Crandell, 75 Ark. 89, and cases, cited; Morton v. Morton, 82 Ark. 492. It follows that the court erred in rendering a decree in favor of the plaintiff cancelling the deeds in question, and the decree will be reversed and the case remanded with directions to dismiss the complaint for want of equity.