Barnes v. Blythe

Philip E.Barnes Joseph A.Blythe and Al.

Charles F. Claiborne,Judge.

This is a suit by a purchaser against his vendor to .recover the purchase price of land paid,on the ground of false representations alleged to have been made by the vendor.

The petition alleges that on September 22nd 1919 plaintiff entered into an agreement with the defendant,Blythe,to purchase the following property;

''Lots One to ten inclusive,in square No.4 in the highway tract of the City of New Orleans ««« as shown on Josepg A. Blythe's official map "that according to said map said lots are represented by Piety Street,and on the opposite side of the square* by Conrad Kolb's Model Far^A being apparently,according to said map fronting on said Model Harm on the North Side of the Louisville and Nashville Railroad tracks;that he recently discovered ( the petition herein was filed on March 21st 1922 ) that said lots are on the South side of said railroad tracks and about eight hundred feet from the nearest comer of said farm; U. /> that said lots instead of being habitable,as he was led to believe are wild undeveloped swamp lands,impossible of appraock-in wet weather;that said lands now belong to the Blythe Company ; that he Mas paid to Blythe and the Blythe Company Three Hundred dollars in monthly payments of Ten Dollars each;that,on account of the fraud and misrepresentation¿practiced upon him by Blythe ^ he is entitled to have his agreement of sale cancelled and the fyt-part payment .she made on account thereof reii^bursed.

The defendants admitted the agreement of salejadmitted that the boundary of the property sold is the property of Kolb'; admitted the payment of #500,but denied all the other allegations of the petition.

There was ¡judgment for defendants,and plaintiff has appealed.■

The questions therefore ares 7"

syiS-Víate lots one to ten of square 4 on Blythe's map on the A North side of the railroad track,and were any representations /( 44 ’ made to the plaintiff that said lots were habitable,and even iji such representations were made,do they constitute a cause of Action?

1st The Plaintiff being sworn was asked!

a Was any map shown you at the time of making this purchase

A Tes,Sir.

a Look at this map and see if it is the map that was shown? Do you identiry the lots you bought on that map ?

A Yes,sir.Witness points out on map lots one to ten in square bounded by Powhatan,Hiawatha,Piety and Kolb's Model Farm property.

a Take this map again and indicate to me where #ou stood in regard to your last answer #

A Witness indicates on map,pointing to the fcatid L.and N. R.R.tracks,the property line of 0.Kolb's Model Farm,and looked in towards the City,where my lots is supposed to be located.

a As X understand you answer,you were standing with your back to the C.Kolb Model Farm which was North ?

ft Towards the Lake,

a And you looked towards the City ?

A Yes,Sir.

Q And the lots you bought were in that direction towards the City §

A Yes Sir.

Mr Frank J.Barnes father of plaintiff,says that be was present when his son made'the agreement to purohase these lots; that an official map was shown at the time;that he made a sketoh of it; Mr Blythe showed him the official map when he went into their office"to find out the location of the lots.He produced that sketch,and upon it are designated the ten lots fronting" Conrad Kolb Model Faim and Piety Street and also fronting Powhatan Street and bounded upon the other side e# by Hiawatha Street in square No.4 upon the South or River side of the L and N. RED.track.and upon the comer of the sketch, is the following writing.: " Lots 8j5 X 80 square 4 Highway Su.Div.-* Lots Nos 1 to 10 Upon the North of the RRIÍ.tracks,with some property Jines intervening,a roadway is traced some distance from the RRD.track and parallel to it marked " Gentilly Road "

This evidence establishes to our satisfaction that the plaintiff was informed and knew where the lots he purchased were located^and that there was therefore neither error on his part, nor fraud onthe part of his vendor.

11 The plaintiff testifies that at the time he signed the agreement of dale he was told that the lots were" high and dry and ready for building."The defendant denies that he made those statements.

But even if those statements had been made they do not constitute cause for annulling the sale .

0.C.Art.2476 (2451)

The warranty reenacting the seller has two objects; the firstw is the buyer's peaceable possession of the thing sold and the second is " the hidden defects of the thing sold mi its redhibitory vioes."

C.0.2521 (2407 )

" Apparent defects,that is such as the buyer might have /fuie-discovered by simple Inspection asinot among the numbeir of redhibitory vioes." C.N.1642

C.0.1847 S 3 : " A false assertion as to the value of that which is the object-of the contract,is not such an artifice as will invalidate the agreement,provided the object is of such a nature and is in such a situation that he,who is induced to contract by means of the assertion,might,with ordinary-attention,have detected the falsehoodjhe shall then he supposed to have been influenced more by his own judgment than the assertion of the other."

As early as 6 A 386,(1851 ) Poree vs Bonneval,the Supreme Court decided that a purchaser of a house could not refuse to pay the prioe on the ground that 'it was badly in need of repairs while it had been represented to him as in good condition,on the ground that the state of the premises was apparent to any person disposed to purchase."

See also A 390-10 R5-3A4-6A 491-6A 426- 52 A 1967 (1964 ) 111 La 32 -33 A 1364 and cases there quoted.

In the case of Sreat Eastern Oil Oo.vs Bulloclr 151 La 209 the Court said :

" On the other hand,parol evidence would be admissible to show any misrepresentation of conditions actually existing or which had existed before;for the vendor who misrepresents the thing sold is guilty of fraud.0.0.1847 .This,however^is not applicable where the purohaseyis in a position to find out for himslef whether the representations of the vendor be true 0.0. 2521,1847 No.3 .In the present case,aside from the fact that the evidence is conflicting as to any such misrepresentation,the sseend shows that by simply demanding the certificates of the Oil refining Co. plaintiff could ns*e found out for itseld exactly the amount of oil produced."

In Slaughter vs Oerson 80 O.S. 379 the Court said on P.386 :

^ The dootrine,substantially as we have stated it^is laid down in numerous adjudications.

Vl Where the means of information are at ah hand and equally open to both parties and no concealment is made or attempted,the language of the oases is,that the misrepresentation furnishes nc ground for a Court Of equity to refuse to enforce the contract of the parties.The neglect of the purchaser to avail himself in all suoh eases,of, the means.of 'information,whether attributable to hie indolence or credulity,takes from him all just claim for relief.Í

The facilities for investigation within the reach of .plaintiff at/the time of the agreement of sale were as great as at the time he discovered that the lots purchased by him were not“high and dry and ready for building purposes *.

' The oases in IIS' La 134 and 46 A 499^ relied on by the plaintiff,are not in poi^t.

Judgment affirmed.

March 6th 1923