Coon v. Atwell , 46 N.H. 510 ( 1866 )

Bellows, J.

In support of the demurrer the defendant urges that the representations set forth are merely expressions of opinion, not amounting to a warranty, and also immaterial, and with common prudence, the truth might have been ascertained.

The foundation of the action, however, is not a warranty, but the fraud and deceit of the defendant; and we think that if in making sale of the farm he fraudulently represented that it cut seventy-five tons of hay a year, when he knew it did not, and the plaintiffs were thereby deceived and induced to buy the farm, and so were injured, the action may be maintained; nor do we think it a case where it was folly or negligence in the plaintiffs to confide in such representations.

It is not at all like the mere expression of an'opinion as to value, but is a statement of a fact that in general would be peculiarly within the knowledge of the vendor; and to hold that it would be folly to confide it, would greatly tend to impair all further fair dealing.

The case of Knox v. Bartlett, in Buckingham county, not long since, was of this character, and although severely contested, no exception of this kind was made.

We are, also, of the opinion that the second count discloses a good cause of action, it being a misrepresentation of the quantity of land.

The fact that the deed contained no warranty on these points is not material, for, as said before, the gist of the action is deceit, and not;? breach of contract.

In each of these counts there is alleged a false affirmation, known by the defendant to be false, and in relation to a material matter, and by which the plaintiffs were deceived and injured,, and in such a case an action lies. Com. Dig. Action upon the Case for a Deceit, A. 8, where it is laid down that if a man sold land affirming the rent to be so much when it is not, an action lies, for the rent is certain, and lies within his own knowledge. So is Risney v. Selby, 1 Salk. 211; 2 Ld. Raym. 1118. So if he sold land, affirming that he had a good title when he knew he had no title. Com. Dig., Ibid. See, also, Pasley v. Freeman, 3 T. R. 51, for the general principles which govern this action. The case of Dobell v. Stevens, 3 B. & C. 623, is much in point as to the alleged representations in respect to the quantity of hay produced. There the vendor of a public house, pending the treaty, falsely represented the amount of porter and spirits sold by the month, and also the rate at which the taps and certain rooms were rented, and it was held that case for deceit would lie. See, also, 2 Smith’s Leading Cases, 55; notes to Pasley v. Freeman; and also Page v. Parker, 40 N. H. 47. In Monell & al. v. Colden, 13 Johns. 395, it was held that case would lie against a vendor of land, for representing falsely that a certain privilege was annexed to it, though it was not stated in the deed. It may be observed, also, that a form similar to the first and second counts is given in 2 Ch. Pl. 687. See, also, Munroe v. Pritchett, 16 Ala. 785; 13 U. S. Dig. 168, sec. 2; Whitney v. Allaire, 1 Comstock 306; Clark v. Baird, 7 Barb. S. Ct. Rep. 65; Bostwick v. Lewis, 1 Day’s Rep. 250; and Sanford v. Handy, 23 Wend. 260.

As to the first and second counts, we are of the opinion that the demurrer was properly overruled; and we are also of the opinion, that, in this form of action, parol evidence of the false affirmations is admissible.

Gase discharged,.