Newell v. Horn , 45 N.H. 421 ( 1864 )

Bartlett, J.

"A false affirmation, made by the defendant with intent to defraud the plaintiff, whereby the plaintiff receives damage, is the ground of an action upon the case in the nature of deceit.” Pasley v. Freeman, 3 T. R. 51. This principle applies to the case where a party is induced to purchase and take a conveyance of land by false and fraudulent representations as to material matters, Page v. Parker, 40 N. H. 69, S. C. 43 N. H. 369, Knox v. Bartlett, (Rock. July T. 1864,) Sandford v. Handy, 23 Wend. 260, Wardell v. Fosdick, 13 Johns. 325, Monell v. Colden, 13 Johns. 395, Rawle on Cov. 613 and 614, Dobell v. Stevens, 3 B. & C. 623, and, of course, to a case like the present, where the jury might have found that the plaintiff was induced to purchase and take a conveyance of lot No. 66, by false and fraudulent representations that its boundaries were certain specified lines that would include the parcels which are in fact on the north and east of the lot. Clark v. Baird, 5 Selden, 183; Whitney v. Allaire, 1 Comst. 305; S. C. 4 Denio, 554, 1 Hill, 484; Harlow v. Green, 34 Vt. 379; Peaslee v. Gee, 19 N. H. 279; Sargent v. Gutterson, 13 N. H. 473. In Lytle v. Bird, 3 Jones, 222, the decision is put expressly upon the ground that the misrepresentation was as to a matter equally open to the observation of either party. Whether the grounds, upon which the decision in Roswell v. Vaughan, Cro. Jac. 196, would seem to have been placed by the court, might not distinguish it from the present case, we do not propose to inquire, for, however that may be, the case cannot now -be regarded as an authority against the view we have here taken. Bostwick v. Lewis, 1 Day, 257; Frost v. Raymond, 2 Caines, 193; Story on Com. sec. 833, n.

The plaintiff does not seek to recover for not conveying land not included in the deed, or to claim such land under a parol contract,' or to enlarge or alter the contract set forth in the written instrument, but he asks to recover his damages for false and fraudulent representations as to the land which was conveyed by the deed, and consequently a number of the cases cited by the defendant are not in point. Culver v. Avery, 7 Wend. 380; 1 Smith, L. C. (3d Am. Ed.) 201.

The jury might have found that the plaintiff was induced to purchase the land by the defendant’s false and fraudulent representations that its boundaries were in the places he specified, and would consequently include the two parcels of land; but the lot did not in fact include these parcels, and they did not pass to the plaintiff, for the terms of the deed cannot be enlarged by parol evidence. Sanborn v. Clough, 40 N. H. 326; Peaslee v. Gee; Clark v. Baird. The nonsuit must be set aside.