Dunham v. Smith

81 P. 427, 15 Okla. 283

• Court: Supreme Court of Oklahoma
• Decided: June 7, 1905
• Status: Published

Opinion

Opinion of the court by

Irwin, J.:

The only proposition argued for a reversal of this case by plaintiffs in error is, that a person cannot sue for damages by fraud, and recover by proving a mistake. We do not think this statement is literally true. As to whether a mistake constitutes a fraud or not, depends entirely on the surrounding circumstances. If the mistake is one which the party making it, from his knowledge of the facts, or from his position and opportunity of ascertaining the facts, could readily have discovered before making it, and 'he acted without d.ue regard for the rights of the other party, and without proper caution to ascertain the truth of the statements made by him, and the other party relied upon these statements and was thereby damaged, we do not think' that the law would excuse such a false representation on the ground that it was a mistake. Now the evidence discloses-in this case that the plaintiffs in error were in the real estate business, and were presumed to know and' understand the character of the business they were engaged in. They advertised certain lots for sale. The plaintiff had a right to presume that they knew the exact location of the lots they were selling. The plaintiff not being in the same business, the same presumption would not. apply to her as to her knowledge on the subject. She went to the real estate agents to buy these lots. They took her to the location and pointed out to her the particular lots, showing her the surroundings. It is admitted in evidence that she relied upon their statements as to the location and surroundings of the lots, and upon their statements purchased these lots. It is also admitted in the record, that their statements were not true. The evidence further shows that hanging on the walls of their office was a map showing the correct numbers of the lots they were selling, and showing their exact location, and if the defendants, plaintiffs in error, had taken the precaution to examine that map, this mistake would not have oc curred. We think that all of the authorities cited in support cf the contention of plaintiffs in error are upon the theory that the honest mistake was one which ordinary care, precaution, or foresight would not have guarded against on the part of the party making it. But this element is entirely lacking in the case at bar. For this reason, we do not think that the authorities cited are in point.

We can see nothing from an examination of the record in the decision of the district court but what is in perfect harmony with honesty, justice, and fair dealing. We think that to reverse this ease and defeat the claim of the plaintiff, would be offering a premium on carelessness and ignorance which would be unwarranted and unauthorized. The judgment of the court is affirmed, at the costs of the plaintiffs in error.

Burwell, J’., who presided in the court below, not sitting; all the other Justices concurring.