Jones v. Emery , 40 N.H. 348 ( 1860 )

Fowler, J.

The principle of the common law is well and distinctly settled, that positive fraud vitiates every thing — contracts, obligations, deeds of conveyance, and even the records and judgments of courts, incontrovertible as they are on every other ground; and contracts entered into upon fraudulent representations are voidable at the election of the party defrauded. Hoitt v. Holcomb, 23 N. H. 535; Bank v. Gregg, 14 N. H. 331; Woods v. Kirk, 28 N. H. 329.

But fraud is never to be presumed, and must be clearly established by proof. Not that positive and express proof must always be given, for whenever it is manifestly indicated by the circumstances and condition of the contracting parties, it will be presumed. But it will not be implied from doubtful circumstances which only awaken suspicion. Story on Contracts, sec. 169; Trenchard v. Wauley, 2 Peere Williams 166; 1 Story Eq. Jur., sec. 190; Chesterfield v. Janssen, 2 Ves. Sen. 155, 166; Fullaque v. Clark, 18 Ves. 483; Goodtitle v. The Duke of Chandos, 2 Burr. 1072; Ellison v. Cookson, 1 Ves. Jr. 108.

Where a party designedly misrepresents a material fact, which it was his duty to disclose, and upon which the other party had a right to rely, and did rely, for the purpose of misleading and deceiving the other party to his injury, he is guilty of a positive fraud, which will authorize the other party to avoid the contract. Story on Con., secs. 171, 172, 173, 175, and authoi'ities cited.

In the case before us, the defendant claimed that the contract in suit had been obtained by such designed misrepresentations of a material fact in relation to the boundaries and extent of the lot bargained to be conveyed to him by the plaintiff. But he offered no proof whatever to sustain his position. The only circumstance shown in evidence tending to excite suspicions was the claim by J. A. Potter to a portion of the premises pointed out to the defendant as included within the boundaries of the lot contracted to be sold, and embraced in tbe plaintiff’s description thereof in the deed to the defendant. At most, this was only a doubtful circumstance, which, standing by itself, might be calculated to awaken suspicion, but, taken in connection with the warranty of title to the whole lot, as pointed out to the defendant, had not the slightest tendency to prove fraud. The defendant himself does not seem to have regarded it as any objection to the fulfilment of his contract, when, at the maturity of the note given for the purchase money of the premises, and demand of payment thereof, he made no other objection to paying it, than that he had not the money, and wished for further time in which to obtain it.

The defendant having entirely failed, therefore, to sustain the defence upon which he relied to avoid his contract to pay the plaintiff one hundred dollars, as liquidated damages for the non-fulfilment of his agreement to pay at maturity his note given for the purchase money of the bargained premises, and the plaintiff having produced on trial, and offered to surrender to the defendant that note, in pursuance of the terms of the contract, a verdict was properly directed for the plaintiff in the court below, and upon that verdict judgment must now be rendered.

Judgment upon the verdict.