Mannel v. Shafer

SiebeckeR, J. The appellant urges a review of the court’s findings of fact upon the ground that they are against the clear preponderance of the evidence; ' From the foregoing statement of facts it appears that the court found the evidence establishes that defendant committed a fraud upon plaintiff by wilfully misrepresenting to her agent the quantity of timber land within the-descriptions embraced in the transfer and the quantity of timber thereon. It is averred that the evidence fails to show that defendant made any of the alleged misrepresentations. We have examined the record and find ample evidence tending to show that such misrepresentations were made by the defendant to plaintiff’s agent on the day they viewed a part of the premises and thereafter during the negotiations for the sale thereof. But it is ■claimed that under the facts and circumstances disclosed it .appears that Mr. Mannel, plaintiff’s agent, could not have been deceived by the alleged false and fraudulent representations because he had full opportunity to examine the lands and the timber thereon when he inspected them with defendant, and that he in fact had actual knowledge of these facts from personal observation of the lands and timber. This contention is not sustained by the evidence adduced. It appears that the inspection of the premises on this occasion was limited to a hasty view of but a very small part of the lands embraced in the negotiations, and that the part so- actually viewed had on it a much larger quantity of timber per acre than the portion not seen. It also'appears that the defendant represented to Mr. Mannel that the other lands not viewed 246 and which plaintiff bought had a larger quantity of timber per acre than the portion they viewed. It is evident that plaintiff and her agent relied on these misrepresentations and were thereby induced to make the purchase, believing that the premises so sold them by the defendant had 3,000' cords of growing timber on them, as defendant represented. The evidence is clear that the quantity of timber was in fact very much less than this amount and that defendant had knowledge of this fact. The claim that plaintiff and her agent had no right to rely on these representations of defendant, under the circumstances shown, is not well founded in fact. True, Mr. Man-nel might have insisted on a full examination and inspection of all the lands and timber 'on the premises purchased, yet he testifies that he did not do so because defendant stated to him that the timber on the lands not viewed was as good and better than the portion they were then viewing, which in fact ran about twenty-five cords per acre. It also appears that they omitted further inspection to enable them to return to the station in time to take the only train home that day, and that Mr. Mannel believed defendant’s statement that the quantity of timber on the land not inspected was as good as on the portion they viewed. Under the circumstances shown, Mr. Mannel was justified in relying on defendant’s representations of these facts covered by their negotiations. The-parties were so situated in relation to the subject under consideration that defendant was called upon to communicate to' plaintiff the true facts involved, and failure so- to do was at Iris peril, whether made through ignorance, carelessness, or wilful misstatement. We do not deem it necessary or profitable to recite in detail the evidence sustaining the court’s conclusion. An attentive examination of it persuades us-that the court’s findings of fact are abundantly supported by the evidence. By the Court. — Judgment affirmed.