Taliaferro v. Boyd

Hart, J. (after stating the facts), (1) Mr. Pomeroy, in discussing the requisites of a misrepresentation as .a defense to the enforcement of specific performance of contracts, says: “In setting up .a material misrepresentation to defeat the specific performance of a contract, the element of ¡a scienter, of knowledge, of belief with or without reasonable grounds, or of intent, is wholly unnecessary and immaterial. So far as this most essential element of a fraudulent misrepresentation is concerned, it is sufficient to defeat a specific performance that the statement is actually untrue so as to mislead the party to whom it is addressed; the party making it need not know of its falsity, nor have any intent to deceive; nor does his belief in its truth make any difference. With respect to its effect upon the specific performance of a contraed, a party making a statement as true, however honestly, for the purpose of influencing the conduct of the other party, is bound to know'that it is true, and must stand or fall by his representation. The point upon which the defense turns is the fact of the other party having been misled by a misrepresentation calculated to mislead him, and not the existence of a design to thus mislead.” Pomeroy’s Equity Jurisprudence (3 eel.), § 889. (2) And in the next section, the same author said: “Another element of a fraudulent misrepresentation, without which there can be no remedy, legal or equitable, is, that it must be relied upon by the party to whom it is made, and must be an immediate cause of his conduct which alters his legal relations. Unless an untrue statement is believed and .acted upon, it can occasion no legal injury. It is essential, therefore, that the party addressed should trust the representation, and be so thoroughly induced by it that, judging from the ordinary experience of mankind, -in the absence of it he would not, in all reasonable probability, have entered into the contract or other transaction. It is not necessary that the false representation should be the sole inducement; others may occur with it in influencing the party. Where several representations have been made, and one of them is false, the court has no means of determining, as was well said by Lord Cranworth, that this very one did not turn the scale.” Pomeroy’s Equity Jurisprudence (3 ed.), § 890. This principle of law was recognized by this court in the case of Yeates v. Pryor, 11 Ark. 58. In the case before us the evidence shows that Mr. Taliaferro represented to Mrs. Boyd that the property around the hotel comprised one and one-half or two acres, and also stated that all the property within the fences around the hotel belonged to him and was included in the exchange of lands. It afterward developed that an irregular piece of land on the north side of the house, sixty-two feet in width on the front end and comprising one-seventh of an acre, did not 'belong to the hotel and was not described in the deed. It is true that Mr. Tolson testified that when Taliaferro, with a wave of his.hand, said that all the land within the fences belonged to the hotel, they could not see the fences on the north side of the house; but, inasmuch as they had already seen that portion of the property he understood that in making that representation he referred to ¡all the property within the enclosure. Mrs. Boyd testified that she believed these representations to be true when she executed the contract for the exchange of lands, and that if she had not believed it to be true she would not have executed the contract. ■ In the case of Yeates v. Pryor, supra, the court said that where a deficit of the quantity of land was so small and unimportant as not to materially affect the interests of the parties a specific execution of the contract would be granted; but that there could be no doubt that the deficit in the quantity sold may be of such a nature and extent as to relieve the defendant from specific performance of the contract. (3) In the instant case the contract was not for the sale of acreage property, but was of town lots upon which there was situated a hotel; the shortage consisted in an irregular shaped strip of land on the north side of the hotel with a frontage of sixty-two feet. The deficiency, under these circumstances, was material. It can not he said, under these circumstances, that the deficiency was so slight as compared with the whole quantity of land to he conveyed, as not to he material. Allen v. Kirk, 219 Pa. St. 574. (4) The evidence tends to show that on the day after the contract was made, Doctor Robinson applied to Mrs. Boyd to purchase the property and she, thinking that he offered her $2,750 for it, agreed to accept it. It turned out, however, that she misunderstood him aud that he offered her only $2,250 for the property, and she refused this offer. Mrs. Boyd stated, however, that at the time she was negotiating with Doctor Robinson, she did not know that there was a deficiency in the quantity of land and, therefore, it can not be said that she waived the misrepresentation. Under these facts, as stated in the record, we are of the opinion that Mrs. Boyd was justified in relying upon the representations as to the quantity of land to be deeded to her and that she did rely upon the representations made by the plaintiff; and, that on that account, the property being city lots, the variation was a material one. The decree will be affirmed.