Herring v. Draper

7 Del. 158

• Court: Superior Court of Delaware
• Decided: July 5, 1859
• Status: Published

Opinions

By the Court;

The contract does not in itself define the limits of the tract of woodland referred to, although it speaks of a large ditch as running through it and the tract as lying on both sides of it and containing about ninety acres. It was therefore competent to show that the defendant, either before or after the execution of the contract, pointed out the boundaries, or stated or showed where the tract, or any part of it lay, for this was not adding to, varying, or explaining the written contract in any particular by paroi evidence, except as it must always be done in a greater or less degree in every such agreement, in order to apply it to the subject matter of it.

The plaintiff then proceeded and proved that the defendant had sold the timber on the tract to him, as good timber which had not before been cut over, and that it ought to have been such at the price he was to pay for it. That he had repeatedly said that the best timber was on the west side of the ditch, and that about one-half of it was on that side of the ditch; but that there was no timber on that side of it on his land at the time of making the contract, which had not before been cut over, except a small piece set in sweet gum; and that what he had been able to procure from that portion of the tract, was deficient in quantity and of comparatively little value. The defendant proved that a few days before the execution of the contract, he went with the agent of the plaintiff to the tract of woodland and showed him the line of it, and the limit to which his timber extended in that dl-. rection, and that he had only represented to the plaintiff when the agreement was entered into between them, that about one-half of it was on the west side of the ditch, and that the best of the timber was on that side and had not been cut over so much as on the other side, and that an axe had never been struck into a part of it lying on the west side. He also proved that the tract had been cut over before to some considerable extent on both sides of the ditch, but that on the western side was at the time the contract was made, quite as good as the timber on the eastern side of the ditch, if not better; and, that the plaintiff had cut over the line shown by him to his agent on the western side of the ditch, on Coursey’s land, and had thereby subjected himself to an action at the suit of Coursey; but that he had never claimed the land so cut on, and had never sold the timber on it to the defendant.

Eli Saulsbury for the plaintiff:

Fraud may be inferred from facts and circumstances. Gh. on Contr. 690. The fraud on which he relied and which he should insist had been proved, was the sale of the timber cut and belonging to the adjoining owner Coursey, by the defendant to the plaintiff with a knowledge on his part at the time, that the timber and land belonged to Coursey and not to himself. Where any one affirms that to be true which he knows to be false, or which he does not know to be true, to the detriment and loss of another and his own gain and advantage, it is fraudulent and actionable. 2 Smith’s L. G. 174. 7 Oranch, 69. 1.3 Mow. 198. 2 East 92. 6 Johns Rep. 181. 2 Smith’s L. C. 170 in note. Fraudulent representations as to boundary and quantity of land by a vendor, are actionable. 2 Smith’s L. G. 173. 16 Alab. Rep. 785. Knowledge of the falsehood of the thing asserted, is fraud and deceit. Garth. 90. And the existence of the falsehood, fraud and deceit, is a fact for the jury to determine. 3 Johns Rep. 271.

Fisher and E. D. Gallen for the defendant:

They should not controvert the law as stated, nor the authorities cited on the other side. They should deny, however, their application to the proof in the present case ; for it was conceded on the other side, that it was incumbent on the plaintiff in this case, to establish to the satisfaction of the jury, first, that the defendant sold to him some forty acres of Coursey’s timber, and in the next place, that the defendant knew that it was Coursey’s timber, or at least, that it was not his own, when he sold it to the plaintiff. As to which the proof had entirely failed. The complaint, or foundation of the action in the present case, was that the defendant had deceitfully and fraudulently sold to the plaintiff the right and privilege of cutting and taking away for his own use, the wood and timber on a certain quantity of land, well-knowing at the time of the contract of sale, that he did not own the timber, or the land on which it stood. Something had been said . in the course of the testimony, by one or more of the witnesses, about the plaintiff’s having been sued and mulcted in damages by Ooursey for cutting on his land; but there was no other, or further proof of the fact.

Bow, the first question which they should present for the consideration of the court was, that it was necessary for the plaintiff to prove in this case, and that too in the regular and legitimate method, by the production of the record, that he had been evicted from the land and had lost his right and privilege to cut the wood and timber on the part referred to, by the superior and paramount title of some other person in the land. As to the question of fraud, the fundamental principle of law was, that it was so odious that it is never to be inferred or presumed, but must be actually proved, which had not been done in this case, nor had any fact or circumstance been established in evidence, from which it could be justly inferred, by the court or the jury, were they at liberty to presume it. There was also another principle of law equally pertinent and applicable to the case, and it was that which was so strikingly and forcibly expressed in the established maxim, caveat emptor—let the purchaser beware, and see to what he is buying. The signification of which is, that every person competent to contract, on entering into it is bound to exercise a due degree of caution and observation, and if, therefore, any misrepresentation be made in a matter which a person of ordinary judgment, vigilance and discretion has an opportunity of discovering and detecting, it is not fraudulent in legal contemplation ; for the law favors the vigilant, not the sleeping. Bow, it was both competent and convenient for the plaintiff in this case, either before, or pending the negotiation for the purchase of the wood-leave, to visit and inspect the land, and also to ascertain the title and limits of the same, the condition of the timber upon it, the quantity and quality of it on each side of the ditch running through it. This remark would more particularly apply to the representations made in regard to the quantity and quality of the timber on the western side of the ditch, and about which we had all heard so much at this late day in the case, but as to which there was no fraud proved in the case, whilst there was not the slightest pretext for alleging, or complaining that the defendant had deceived or misled the plaintiff, as to the boundary of it, for it was positively proved that he went with the agent of the latter to the land and carefully pointed out the limit to him, to which his timber extended.