Wallace v. Hussey

The opinion of the court was delivered, January 3d 1870, by

Asnbw, J. —

We discover no error in admitting the testimony of Mr. Marchand. The offer was not of compromise, but of payment. It was to pay the balance of $25,000, owing upon the mortgage, without a claim of abatement, or an allegation of a want of consideration. Clearly this was an inferential admission that the defendants owed the whole sum. The condition on which the offer of payment was made, to wit, that Hays should assign this portion of the mortgage to Mr. Nixon, did not relieve the offer to pay the entire amount, from the presumption that it was all equitably due to Hays, without further explanation. It might be that the defendant was willing to pay a debt, part of which he considered unjust, on condition of his liability being transferred to another, and he might have good reasons for so doing, but this it was his business to explain. Certainly, as a primá facie pre*29sumption, when he offered to pay to his creditors the whole sum without any claim of abatement, it was some evidence that he had no defence. How much, it was for the jury, not the court, to say.

The second and third assignments of error involve the doctrine of the vendor’s liability for false representations of the quality of the property sold. The second is not insisted on, but the third is, on the ground that the second point of the defendants did not raise the question of fraud, but a misrepresentation of the quality of the property sold, innocently made it might be, but for which the vendor must answer in damages. But this question was not fairly raised by the evidence. There was no evidence given of any representations of the vendors except those contained in the pamphlet attached to Leslie’s power of attorney. Now this was a document in the nature of an advertisement only, addressed to all persons who might feel inclined to buy, and inviting their attention to the property and its supposed advantages. It is not like a representation of a fact made directly to a purchaser in the act of negotiating a bargain ; but it is always looked upon with many grains of allowance for florid description, and as a mere invitation to bring in purchasers. But the pamphlet itself warned all persons desirous of purchasing not to rely upon its terms. After inviting a personal examination of the property, it concludes by saying — “ Parties negotiating for purchase are required to examine the foregoing schedule and statement, and exercise their own judgment as to its correctness.” Thus the defendants cannot say they were misled, for they were warned not to take the schedule and statement as true. If they did so, it was their own negligence, for it is only when the purchaser ought to rely on the vendor that he can be misled. And in this case there was no difficulty in the way of a personal examination. The property lay right upon the railroad and but half a day’s ride from the residence of the purchasers. In view of the evidence, therefore, the court very properly submitted the case to the jury on the ground of a fraudulent misrepresentation only. For if the pamphlet was made by the vendors to play a part in a scheme of fraud, the invitation' to examine the property and test the correctness of the description would not rescue it from the influence of the fraud. Indeed that seeming fairness would only assist to make the fraud more effective.

We are of opinion that the agreement of May 5th 1865, postponing the payment of the balance unpaid on the mortgage for eighteen months, did not bring the case within the Act of Assembly forbidding a scire facias to issue on the mortgage until the expiration of one year after the last instalment fell due. This agreement amounted to a covenant not to sue on the mortgage until the expiration of eighteen months, but was no part of the *30mortgage. It was a new credit for a new consideration, and the covenant that no process should issue on the mortgage until the expiration of the new period, fixed the time when process should issue. This was the final agreement of the parties, quite as binding and far more reasonable than a waiver of the legal period (a common clause in mortgages) and an agreement that a scire facias shall issue as soon as the debt becomes payable.

The fifth assignment of error needs no more elucidation, than what has been said upon the first assignment.

Finding no error in the record, the judgment is affirmed.