Roberts v. Plaisted , 63 Me. 335 ( 1870 )

Barrows, J.

The plaintiff claims that the defendant falsely and fraudulently misrepresented to him the boundaries of a farm which he was purchasing of the defendant, and at the trial offered testimony strongly tending to prove that the defendant told him that his land included all between a certain creek and the fence. The statement was not true. Between the fence and the creek was a piece of land containing a number of acres belonging to another party.

The defendant had once bargained with the owner for the purchase of this piece and advanced to him the price agreed on, taking the note of the owner for the amount instead of a deed of the land. This arrangement subsisted for some time, and the fence which had been maintained between this piece and the defendant’s farm had gone to decay, and the defendant’s cattle were pastured there.

At the time that the plaintiff examined the premises the remains of the fence would seem to have been covered with snow and invisible.

The defendant denied making the representation, bnt the preponderance of proof was strongly against him. His counsel claimed that if any fence was referred to it was the old one nearly obliterated between this piece and defendant’s farm. The jury were carefully instructed, though not in the precise terms of the defendant’s request, that if he honestly meant that fence (if any fence was there) the plaintiff could not recover because the intent to deceive would be wanting.

Exceptions will not be sustained because the presiding judge declines to adopt the precise language of a requested instruction, though it be pertinent and correct, if instructions substantially equivalent and equally intelligible are given.

The defendant further excepts to an instruction, the substance of which was that “if the plaintiff took his deed relying upon the representations of the defendant as to what pieces of land were included in the description, and the defendant made such representations, it will not relieve the defendant from liability to come into court now and say to the plaintiff, ‘if you had exercised more diligence and care and circumspection, it would have frustrated my plan for deceiving you and therefore you cannot recover;’ ” and to the refusal of the judge to give an instruction, requested in various forms, substantially amounting to this: that “the plaintiff was bound to use ordinary diligence and care to ascertain the boundaries of the farm he was purchasing independently of the defendant’s representations, and if he did not, he could not recover.”

The exceptions state that this was refused “except as given in the charge.” The exceptions do not state what the instructions given in the charge upon this point were. But if we assume that the one above quoted and excepted to was the only one, we must still hold, in view of the wliolé evidence which is reported, and which we have carefully examined, that the judge was justified in withholding the statement of an abstract principle of law, which however correct, was not pertinent to the case presented by the testimony There is no testimony in the case which would justify the jury in finding a want of ordinary care on the part of the plaintiff in the particular named. The representations seem to have been of a character to mislead not only him, but his father and uncle, who went with him at one time • to examine the premises.

There is no room for a question about a mistake as to which fence was intended. Under the instruction given the jury must have found that the defendant intended to point out the fence which included the Hooper lot with the farm. The language of the description in the deed is not such as to lead any person of ordinary education and intelligence to suspect that the representation as to the boundary upon the face of the earth was untrue.

When there is no testimony in a case to which the statement of the abstract rule can properly apply, its enunciation by the judge upon the request of counsel can only tend to mystify and mislead, and it is rightfully withheld. Exceptions overruled.

Appleton, C. J., Walton, Dickerson, Virgin and Peters, JJ., concurred.