Reybold v. Henry ( 1866 )

The Court, Gilpin C. J., charged the Jury.

According to the evidence the contract between the parties was entirely verbal, and it would be for the jury to decide upon the proof before them, what the defendant meant and what the plaintiff understood "by the statement made hy the former to the latter, that he had the right and privilege of furnishing the hotel mentioned with horses and carriages, and that he had the right of selling and transferring it with the livery stable, and that such right and privilege was itself worth five thousand dollars. It would also he for the jury to consider what the defendantintended the plaintiff should understand and infer from such a statement at the time when he made it to him, for the testimony in regard to it was. uncontradicted, and was uncontroverted by the counsel for the defendant, and the only question was as to the meaning and effect of it. It would seem that the plaintiff understood the representation to import that the defendant had some positive agreement, understanding, or arrangement with the proprietors of the hotel to that effect, when he suggested to him on the appearance of one of them in the hall at the time it was made, that they should step up and speak to him about it, and ascertain if he would confirm the representation, and it would also seem from the defendant’s reply to his proposition, that it was not worth while to do so, hut that it was all right, that his wish and intention was that the plaintiff should so understand it; and if such was the view which the jury should take of that matter, it would he sufficient to sustain the allegation of the plaintiff in his declaration, that the defendant represented to him that he had a contract or agreement to that effect with the proprietors of that hotel. If, however, the jury should he of the contrary opinion, and that the defendant did not mean to be so understood by the plaintiff, and that all he meant to say in regard to the matter merely was, .that he had a right in common "with all other livery stable owners in the city of Washington, of furnishing horses and carriages to that hotel, without having, however, any understanding, or arrangement, whatever with the proprietors of it on the subject, it would not sustain such an allegation, and the plaintiff had failed in his proof on all the special counts contained in his declaration, and also on the common counts, and could not recover from the defendant in the action any portion of the money paid for either the stable, or that right and privilege; because in that view and aspect of the matter, he had failed to prove any such false or fraudulent misrepresentation in regard to it, as would entitle him to recover. But supposing the other to be the view which the jury should take of the matter, and that the defendant did intend to represent to the plaintiff that he had some such peculiar or exclusive right and privilege by agreement with the proprietors of the public house referred to, which was alone worth five thousand dollars, then he was^bound in law to make that representation good, and that he had such a right and privilege to sell and transfer with the livery stable to the plaintiff worth that amount, at least; for there was a warranty implied in every sale that the seller has title to and in the thing sold, and he was bound to show it, and that too, even though there may be no fraudulent nor intentional misrepresentation on his part concerning his ownership, or title to it. If the subject matter of the sale had ceased to exist when the sale was made or agreed upon, the contract of sale would be void, and the purchaser would have a right to recover back his purchase money, although both parties were ignorant at the time of the contract that the thing had ceased to exist, and there was a total absence of any intentional fraud on the part of the vendor in the transaction; yet if the party having nothing of the kind to sell, bargains as if he had, and so induces the buyer to become the purchaser of it, and to pay him for it, that will amount to what is called a fraud in equity, and the purchaser will be entitled at law to recover back what he paid for it; for the common law in that respect followed the doctrine of the civil law, which would hold such a bargain and sale to be no contract. It was true, as a general proposition, that if the seller affirms that he is the owner of the thing sold, honestly believing himself at the time to be the owner of it, and so prevails upon or induces another person to buy it from him, an action could not be maintained against him on the ground of false and deceitful misrepresentations, if the purchaser had been furnished by the seller with the information, or the means of ascertaining for himself the truth or falsity of the matter represented. But if the representations were manifestly fraudulent, or if, in other words, the seller was aware that his ownership or title to the thing to be sold and proposed to be transferred to the purchaser, does not exist, or is defective and worthless, and withholds the knowledge of that fact from the purchaser, that will be such a fraudulent concealment of the fact and of the truth as will vitiate and avoid the contract ab initia, that is to say, from the very inception of it, and entitle the purchaser to recover back the amount paid as the price for it. And in that view of the present case, the sum of five thousand dollars may be recovered by the plaintiff on the common counts filed in the action for money had and received, as the only misrepresentations alleged and relied on by the plaintiff, seemed to relate to the matter of the right and privilege of supplying the hotel referred to, with horses and carriages, it was, v? e consider, in that respect, severable in its character, so far as the consideration to be paid for the several and distinct matters included in the sale was concerned, the sum of five thousand dollars out of twenty-four thousand dollars, the aggregate sum paid for the whole that was contracted for by him, being the price and the amount separately and distinctly apportioned by the defendant to be paid to him for that alleged right and privilege.