Loveless v. Davis , 116 Ark. 443 ( 1915 )

Hart, J.,

(after stating the facts). The law in this ease is well stated in English v. North, 112 Ark. 489, 166 S. W. 577. In that case the court held:

1. “Misrepresentations which will justify the rescission of a contract for the sale of land must be of a decided and reliable character relating to some matter of inducement to the making of the contract calculated to mislead the purchaser and induce him to tony on the faith and confidence thereof, and in the .absence of means of information to he derived from his own observation and inspection, and must injure the party seeking to rescind. ’ ’

4. “Where one who exchanged 125 acres of land for city property, not only misrepresented its value, but also represented that all except possibly ten acres was susceptible of cultivation in some form, when in fact not more than forty-five acres was tillable, though he had special information regarding the character of the land acquired by personal observation, and was told by the other party that he would take the land in reliance on such representations, and it appeared that the other party was injured by the exchange, a rescission would be decreed.”

(1) So it may be taken as well settled in this State that in order to vitiate a trade on the ground of fraudulent misrepresentation, the misrepresentation must relate to a matter material to the contract and in regard to which the other party had a right to rely and did rely to Ms injury.

(2) It is also the law that if the means of information as to the matters represented is equally accessible to both parties they will be presumed to have informed themselves, and if they have not done so they must suffer the consequences of their own neglect.

The chancellor was of the opinion that a clear preponderance of the evidence showed that the defendant urged the plaintiff to visit the Texas land before the deeds had been exchanged and offered to pay half of the expenses of the trip. It was also the opinion of the chancellor that the plaintiff 'refused to go, but made an independent investigation of his own as to the value of the lands and as to their character.

We do not agree with the chancellor in this finding. It is true the defendant offered to pay half of the expenses of the plaintiff in order that he might go and look at the land himself before the trade was made. It is also true that the plaintiff did make inquiry of another person who resided in' Texas concerning the land, but this person did not live in the immediate vicinity of the land and only told the plaintiff that as a general proposition western lands were rising in value. The plaintiff stated that he did not accept the proposition of the defendant to go and examine the lands before he made the exchange for them 'because he relied upon the representations made to him by the .defendant, and we are of the opinion that he had a right to rely upon these representations.

The defendant told him that he had never been on the lands and that the representations he made in regard to them were derived from Nelms, but Nelms was his agent when he exchanged his Texas land for them.

The preponderance of the evidence shows that the defendant represented to the plaintiff that the lands were of black sandy loam, and that part of them had been cultivated in onions; that the land was adapted to the cultivation of certain kinds of grain and fruits; also that there was a flowing well of water on the tract of land adjoining and that this well was situated near the partition line between this land and the adjoining section; that the lands were situated near Metz; that Metz was a thriving village of eight hundred people; and that there were stock pens and facilities for handling stock on the land.

The preponderance of the ■ evidence shows that these representations were not true; that the town of Metz was situated at least eight miles away and that only nineteen people lived there, most of them Mexicans; that there were no stock pens or switches on the railroad nearer than the town of Metz; that there was no flowing well of water on the land, the nearest water being a small well on the section adjoining, several miles away •from the partition fence; that one-half of the land was gyp, which was wholly unsuitable for raising any kind of crops, and that the other half was sand and crops of no kind could be raised on it.

The representations that the land could be rented for three dollars an acre was not true; it could only be rented as pasture land and the rental value was only-ten cents per acre.

Nelms, the preacher who represented the defendant when the exchange was made for the Texas land, testified that he told them there was a small well ion the land 'adjoining hut as we-have already seen this well instead of being near the partition fence was several miles away and instead of being a flowing well, was only a small well with a wind ¡mill attached to it. Nelms also said that the land was a black sandy loam and was capable of raising good crops of different kinds of grain and fruit but the testimony of several other parties who resided in Craine County showed that there were only about two hundred people in the county; that -the soil was entirely worthless for agricultural purposes 'and that no water could be procured on it by digging wells.

(3) Cannington, who tried to purchase the lands for Harris after the exchange in question was' made, testified that Davis told him that the lands wére situated right on 'the railroad; that Metz was a flourishing town of a thousand inhabitants; and that stock pens were situated on the railroad right next to the land. Though these statements of Cannington were made after the exchange had been made, the testimony was competent as tending to discredit the testimony given by Davis on the trial of the case.

(4) It will be remembered that Davis stated that he merely told Loveless what had been represented to him by his agent Nelms. Nelms testified as to what he had told Davis and under this testimony the plaintiff might well have believed that the land was susceptible to cultivation and was well worth the land which he exchanged for it.

These representations the plaintiff relied upon, and had a right to rely upon, and the preponderance of the evidence shows that the representations were not true. All of the witnesses who lived near the land testified that it was a dry, arid place, unfit for cultivation, with no water on it and none near it.

Under these 'circumstances we do not think it is a case for the 'application of the rule that where the means of information are alike accessible to both parties they must be presumed to have acted upon their own information and not to have relied upon the information given them by the other.

It follows that 'the judgment must be reversed and the cause remanded with directions to enter a decree in favor of the plaintiff in accordance with the prayer of his complaint.