Moncion v. Bertrand , 98 Vt. 332 ( 1925 )

The complaint is in tort for misrepresentation and fraud in the sale of the farm and certain personal property consisting of cows and other live stock, hay, and farming tools of defendant Bertrand to the plaintiff. Trial by jury. Verdict for plaintiff. The case comes here on exceptions by defendants to the admission and exclusion of evidence.

The representations, among others relied upon, and which the evidence tended to show were false, were as follows:

First. That the farm and personal property were worth $15,000.

Second. That the dairy was then producing cream to the value of $200 a month.

Third. That the farm would pasture 25 cows and cut sufficient hay to winter 25 head of cattle and a pair of horses.

Three exceptions, only, were briefed, and we consider them in their order:

First: Subject to the objection and exception of defendants, the plaintiff Wilfred, testified that the defendants, prior to the sale of the farm, told him they could sell the farm for him at any time for $15,000, if he wanted to sell it. It is undisputed that the testimony objected to was embraced in and a part of a conversation relating to the sale of the property, wherein they told the plaintiff that the farm, stock, and personal property was worth $15,000. The statement with respect to value was received without objection, and the plaintiff's evidence unquestionably tended to show that it was understood by plaintiff as a statement of fact and was so intended by the defendants.

Ordinarily representations relating to value are mere expressions of opinion and not deemed fraudulent. But they may be otherwise. Belka v. Allen, 82 Vt. 456, 74 A. 91; Crompton v.Beedle, 83 Vt. 298, 75 A. 331, 30 L.R.A. (N.S.) 748, Ann. Cas. 1912A, 399; Arnold v. Somers, 92 Vt. 513, 105 A. 260; HarponolaCo. v. Wilson, 96 Vt. 427, 120 A. 895. The challenged evidence was but a mere expression of opinion impressing on the purchaser what they could do for him if he wanted to sell the property in the future. Standing alone, in no way did this tend to show fraud. Hunt v. Lewis, 87 Vt. 528, 90 A. 578, Ann. Cas. 1916C, 170; Girard v. Jerry, 95 Vt. 129, 123 A. 533.

If this statement was admissible at all it is because it was a part of the res gestae, and so tended to lend force and effect to the principal statement. The rule is clearly and accurately pointed out in the recent cases in this State. Goulette's Admr. v. Grand Trunk Ry. Co., 93 Vt. 266, 107 A. 118; Comstock'sAdmr. v. Jacobs, 89 Vt. 133, 94 A. 497, Ann. Cas. 1918A, 465.

That this assurance grew out of the transaction, was contemporaneous with it and tended to lend emphasis to it and make it more probable that the statement of value would be received and relied upon by the plaintiff as an assertion of fact rather than as a matter of opinion in the circumstances, can scarcely admit of doubt.

Bertrand was the owner of this farm, and the other defendants were real estate agents engaged in negotiating the sale of real estate, admittedly acquainted with land values in that vicinity. Plaintiff came from Canada to see this property with a view to purchase, at their instigation. They gave as a reason why Bertrand wanted to sell at this time, that he was divorced from his wife, and living alone. The assertion of the defendants of what they could do if the plaintiff wanted to sell was, in the circumstances disclosed, well calculated to persuade a stranger that their assertion of value was a fact within their knowledge.

It is a well-established rule that a person who seeks to establish fraud in the sale of property may show every circumstance in the condition or relation of the parties, and every act and declaration of the parties charged with the fraud, which bears such a relation to the transaction under investigation as to be in its nature calculated to persuade the jury that the charge of fraud is or is not well founded. 14 A. E. Enc. of L. 196; Stauffer v. Young, 39 Pa. 459. See Belka v.Allen, 82 Vt. 456, 74 A. 915; Harponola Co. v. Wilson, 96 Vt. 427, 120 A. 895.

In Bloomberry v. Pugh, etc., (R.I.), 121 A. 430, for fraud, in the sale of a truck by one Frey as agent for the defendant, the plaintiff, it was held, should be permitted to show the fraudulent representation of Frey which induced the plaintiff to enter into the contract, and the accompanying promises which Frey knew that neither he nor defendant had any intention of performing, although the accompanying representations were promissory in their nature. This is well within the principle established by the authorities. Niles v. Danforth, 97 Vt. 88,122 A. 498. See Greenleaf, on Ev. (15th ed.) 108; Commonwealth etal. v. Chance, 174 Mass. 245, 54 N.E. 551, 75 A.S.R. 306.

But the defendants contend that it was entirely improbable that the defendants would make a statement that they could at any time sell the property for $15,000 when they were ready to sell to plaintiff for $13,000; that the statements claimed were so extravagant and unreasonable that a sensible person would not believe them. Granting that such was the fact, it would not necessarily preclude the person victimized from recovery. Nichols v. Land, 93 Vt. 87, 106 A. 592; Niles v. Danforth, supra;Harponola Co. v. Wilson, supra. Second: This exception was to the testimony of George Nelson as bearing upon the question of damages. He was asked the following questions: "Assuming that in March, 1921, there were 17 average cows there on the Marshall farm, how much more would they be worth if they produced $200 a month than they would be worth if they produced only $119.69 a month, on the average, from October, 1920, to March, 1921?" To which witness answered, "They would be worth $10 or $15 or $20 a cow more if they could produce that, than they would if they produced the smaller amount." The question relates to the difference in value of the same class of cows during the same period of time at the same place ascertained solely by their product. The objection was on the ground that there was no proper foundation laid for such an estimate. The plaintiff's testimony tended to show that defendants in the sale of the farm, represented to the plaintiff that they were getting in cream checks of $200 a month, while as a matter of fact they were getting only $119.69 a month as an average from October to March, and that about 17 cows were then producing. Thus the foundation was laid for attempting to show the damages suffered from overstating the value of the product. The difference in value of cows as affected solely by the differences in value of their product was clearly permissible as tending to show the damages resulting from such false statements as to the actual product of cows sold. This objection was properly overruled.

Third: This question relates to the exclusion of evidence offered by defendants. The plaintiff claimed, and his evidence tended to show, that defendants told him that the "farm would pasture 25 cows," and that it would "cut enough hay to winter 25 head of cattle and a team of horses," and that the property would have been worth $2,500 more if it had been as represented in these respects.

In this connection one of the plaintiffs' witnesses had testified that the pasture, in fact, would not carry over 15 cows without additional feeding of green fodder and grain, and that it would probably winter 18 cows without feeding meal and grain.

In answer to this, defendants offered to show by witness Russell that "it is the general custom among farmers in that vicinity and beyond as far as the witness has any acquaintance, to feed grain to milch cows; that it is good husbandry to do that, and that it is the general custom to feed green fodder in the summer to dairy cows, and that it is good husbandry * * * and the fair understanding of a farm that was said to carry a given number of cows, would be under those conditions, with a suitable addition of grain and green fodder such as farmers usually feed, * *" and "that where this grain and green fodder is fed that it materially increases the amount of stock that a farm would carry and that that would be considered as accompanying the statement that a farm would carry a certain number of cows that these conditions would be implied in such a statement."

So far as this offer related to custom, it was in effect to show the general custom in the vicinity where the farm was located, unaccompanied by any offer or claim, that the same was known to the plaintiff, or that the circumstances were such that he was chargeable with knowledge thereof. In this situation it was not error to exclude the evidence.

There is no presumption that a non-resident in a community is cognizant with a usage or custom prevailing in a particular trade or locality. Miller v. Wiggens, 227 Pa. 564, 76 A. 711, 19 Ann. Cas. 942, and note. When custom or usage is admissible, at all, it is only on the ground that the parties who made the contract were both cognizant of it, and made the agreement with reference to it. Chateaugay Iron Co. v. Blake, 144 U.S. 476, 36 L. ed. 510, 12 Sup. Ct. 731. See Huntington v. Ramsden, 77 N.H. 375,92 A. 336, Ann. Cas. 1915C, 949. Such in effect are our own cases. SeeRussell Admr. v. Ferguson, 77 Vt. 433, 60 A. 802; Linsley v.Lovely, 26 Vt. 123; Stevens v. Smith, 21 Vt. 90; Copper Co. v.Copper Mining Co., 33 Vt. 92; Goodnow v. Parsons, 36 Vt. 47;Chamberlin v. Rankin, 49 Vt. 133.

Nor in the circumstances could such a custom be considered as attending the statement by implication, for no evidence had been introduced warranting such inference. While great latitude in the range of evidence is allowed in actions of fraud, and the presumption of innocence is to be indulged in favor of the party charged therewith, we are aware of no case that goes to the extent of permitting such party to show that representations, otherwise false, were true, if weighed in the light of facts and circumstances known to him, but of which he knew or in circumstances ought to have known, the other party was ignorant. Concealment of that which is true may be equally fraudulent as the assertion of that which is false. Graham v. Stiles, 38 Vt. 578; Paddock v. Strobridge, 29 Vt. 470; Howard v. Gould, 28 Vt. 523, 67 A.D. 728; Newell Brothers v. Hanson, 97 Vt. 297, 304,123 A. 208.

So far as the offer relates to good husbandry in the feeding of milch cows by the "addition of grain and green fodder, such as farmers usually feed," without limit as to quantity or source whence obtained, it is equally untenable. The representations complained of were that the farm would pasture 25 cows and cut sufficient hay to winter 25 head of cattle and a pair of horses. To permit defendant to show that he spoke with reference to the addition of grain or green fodder obtained elsewhere, would be error, for an offer to show custom and good husbandry, susceptible of that version, would be improper.

Moreover, if this offer is to be construed as including both evidence of custom and the demands of good husbandry, the ruling must stand, for an exception to the exclusion of evidence included in a single offer, if otherwise admissible, is unavailing, unless all the evidence included in the offer was improperly excluded. Crahan v. Town of Chittenden, 82 Vt. 411, 74 A. 86; Dubois v. Roby, 84 Vt. 465, 80 A. 150; Knight v.Smythe, 57 Vt. 529.

But the defendant, as the transcript shows, made a further offer which did not include the element of custom to show "that by the feeding of such meal food and green food during the summer as good husbandry demands, that the carrying capacity of this farm would be increased by 10 cows, in other words, a farm that will carry 16 cows as has been indicated by the plaintiff's testimony would carry 25 cows (that is, of itself without any feed and without using green stuff), will carry 25 if these methods are pursued according to good husbandry." This offer was excluded under exceptions by defendant.

What constituted "good husbandry" cannot be ruled as a matter of law. It is a question of fact to be found, if at all, on evidence. When this offer was made, no evidence had been introduced tending to show of what "good husbandry" consists, in connection with such matters as are involved in this case, or claimed by defendant.

The phrase in the offer "as good husbandry demands" was purely the assumption of a material fact, tending to show which there had been no testimony in the case. By reason of this assumption, if for no other reason, the offer was properly excluded. Baker Son v. Sherman, 71 Vt. 439, 46 A. 57; Coolidge v. Ayers, 77 Vt. 448, 61 A. 40; People v. Mather, 4 Wend. (N.Y.) 230, 21 A.D. 122; 1 Thompson on Trials, § 369.

Moreover, the offers, whether taken as a whole or separately, were properly ruled, for the statements complained of relate solely to the capacity of the pasture as measured by cows, and of the farm to cut hay as measured by cattle and horses. They must be tested by the consumption reasonably to be expected by such cows, cattle, and horses as the plaintiffs might reasonably be expected to keep under ordinary conditions, climatic and otherwise, properly fed from its product. These offers were unlimited as to the extent of such additional feeding required and comprehend the feeding of meal or green stuff, whether derived from the farm or other sources. That the Court so understood the offers is shown by the record. It could not be tested by large cattle or small, heavy feeders or light feeders, nor by the products of other farms or grain or green fodder from other sources. Such measure of capacity would be no measure at all.

Nor was there anything in the offers to show that defendants understood and intended plaintiff to understand at the time that such additional feeding was required to constitute good husbandry. To be available, the offer must be specific enough to make its relevancy appear to the court. Jericho v. Huntington,79 Vt. 329, 65 A. 87.

True it is that, if a representation is fairly susceptible to two constructions, the one which will free it from imputation of fraud must be adopted. Henderson v. Gilliland, 187 Ala. 268, 65 So. 793; McKennan v. Mickelberry, 242 Ill. 117, 89 N.E. 717;Gormley v. Dangel, 214 Mass. 5, 100 N.E. 1084. See 12 R.C.L. 426. And it is the duty of the court to give the representation a construction, if reasonable, that comports with honest motive, but here the statements complained of were certain, unambiguous, and not susceptible to a construction as having reference to husbandry requiring the additional use of green food and grain, nor to products other than such as were derived from the farm

To the words used must be attributed the natural and ordinary meaning, unless intent that they be otherwise understood be first shown. If, in the circumstances, good husbandry required special feeding, that fact should have been made known to plaintiffs as a matter of good faith. Honest intent to be understood as using the words in a latent qualified sense cannot be inferred from such extrinsic facts, nor can it be inferred from the statements which defendants are alleged to have been made, and which their testimony tended to establish.

Judgment affirmed.