Doerr v. Henry

*678SUPPLEMENTAL OPINION ON REHEARING

BRIGHTMIRE, Chief Judge.

In their Petition for Rehearing the Doerrs state that this court’s decision exceeded the acceptable standards of review by weighing the evidence and making findings that differ from those made by the trial court. More specifically, they say a “pivotal and controlling issue” which the trial court found in the Doerrs’ favor was whether the fact that the Henrys were getting less land than they contracted for was revealed to them prior to closing. The Doerrs say the trial court found such fact in their favor and this court has found otherwise.

Without conceding that the issue referred to is pivotal or controlling, we think it would be helpful to examine the trial court’s lengthy findings and conclusions in an effort to determine whether the suggested “pivotal” fact was found to be as the Doerrs maintain, or whether this court found any material fact contrary to what the trial court found.

On April 13,1988, the trial court signed a nine-page document entitled “Journal Entry of Judgment” and filed it the next day. In it the court recited certain evidence it had heard on August 15, 1987, stated its view of the law, made certain findings, and entered a “decree of foreclosure” in favor of the plaintiffs and against the defendants.

Shorn of various irrelevant asides, the trial court’s findings of fact are as follows:

(1) “[T]hat many things are unknown by any of the parties to this suit and cannot be determined with any certainty”;
(2) The defendants should have hired a lawyer before contracting for the property;
(3) The testimony of surveyor Lambert is “undisputed” and his testimony was such with regard to the “Pauline Bailey Survey,” that “the Court doubts that anyone can accurately determine who owns or possesses which property in that area,” and therefore the court finds that “there is no accurate description which can be given to ... Lot 31, Lot 32, or Lot 33”;
(4) One bearing is in error on “Plat 1, as attached to the contract of the parties,” an error that does not permit the description to close. Documents prepared after September 14, 1984, show the “proper bearing and a description which does describe a closed area”;
(5) The “Court finds that there was no requirement of the contract which was not completed prior to or at the time of transfer of the property. The descriptions that were shown in that original contract are questionable or indeterminable”;
(6) The contract called for “the seller to furnish survey stakes at all corners of both plots. This was attempted and the stakes were provided, at least at one time, as shown not only by the testimony of Mr. Doerr, but by the testimony of Mr. Lambert that he was the party hired as a professional surveyor to survey and stake the corners”;
(7) “The abstract was furnished at closing and was available prior to that time by the testimony of Mr. Songer, as attorney. He also indicated a marketable title to ‘Lot 33’ on which the improvements were located”;
(8) The “contract was executed completely at the closing on October 19, 1984”;
(9) “The finding, as stated previously, also makes the possibility of the allegation of fraud very thin and the Court finds that one of the essential elements of fraud is that it must be with intent and there is no showing that there was any intent on Mr. Doerr’s part to defraud the parties if he made a false allegation as to the description of the property and the staking of the corners and allowing the defendant to examine the property” (emphasis added);
(10) “Every opportunity was provided to • the defendant and the plaintiff, Mr. Doerr, even attempted to assist in the inspection but could not find the stakes”;
(11) The defendant could have retained a surveyor to find the stakes or he could have “insisted that the plaintiff show *679him the corners exactly, but no such demand was made”;
(12) “With no showing of intent, there would be no consideration of fraud. Again, since there is no accurate description, there is no showing of an intent to defraud”;
(13) It “does not appear that Mr. Henry considered a case of fraud until some time after at least August of 1985”;
(14) The fact that Mr. Henry “added a boat house ... almost a year after the contract_ which is not an improvement necessary to maintain the status quo ... does not indicate that the defendant, at the time, was considering a rescission of the contract. Even if the defendant so testifies, we reach that point that the defendant cannot lay behind the log and mislead the other party that he is satisfied with that transfer. ...”;
(15) “Mr. Henry had every opportunity to examine the property.... prior to the transfer of the property and chose not to do so”;
(16) The “transaction, while there may be questions in it, is a result of the parties trying to act on their own behalf, and ... a large number of people could have told either or both of the parties of that indefinite status if they had checked prior to the transaction; neither chose to do that”;
(17) The boundary of the property sold “remains indefinite,” and since an “indefinite description of property has been used over a period of time, there is no showing of any intent on the part of the plaintiff to defraud the defendant herein”;
(18) “The change of description was given to the defendant in Mr. Songer’s letter and also was testified to by the defendant and Mr. Doerr as to a telephone conversation prior to that time concerning the description. The attempt to show the survey was again made by Mr. Doerr immediately after the closing, no objection was indicated by the defendant at that time, no question was raised at that time. On that basis, the Court finds that the transaction was completed at that time, and therefore there is no showing of an intent to defraud; therefore, no finding of fraud by the Court.... If there was a difference, that they merged in that contract [which was] modified by another contract in writing which, in this case, was the deed, which indicated acceptance by the plaintiff”;
(19) “While ... it may appear unfair, we still have that situation where [the defendants moved] without a thorough investigation,” and bought “a ‘pig in a poke’ ” and get only “the pig that is there and that’s all. Nothing additional. Neither does it give you an action in fraud if you decide later you don’t like the pig”;
(20) The same “knowledge of those business transactions” which Mr. Henry said he had gained in Texas over “a long period of time” “would apply to property, even though he had not owned property with[in] the State of Oklahoma”;
(21) The “findings above will cover all situations which have arisen in this case” and “indicate the basis for the Court’s findings and judgment,” which is “that the Plaintiff have a decree of foreclosure against the defendant.”

It is clear that the trial court did not find that the Henrys knew prior to closing that they were getting less land than they had contracted for. Indeed the only findings of fact made by the trial court relevant to the issue of fraud raised by the defendants are these:

(a) No one, including the plaintiffs, knew where the boundary lines of the land the plaintiffs sold to the defendants were— and still did not at time of trial — and therefore by implication the trial court found that Plats 1 and 2 were false representations of facts which the plaintiffs made knowing they were false.
(b) The defendants had no legal right to rely on the plats and other representations of the plaintiffs concerning the boundaries of the land involved. This, we held, was an error of law.
(c) Corner “stakes were provided, at least at one time,” to fulfill the contract requirement that seller “furnish survey *680stakes at all corners of both plots.” Based on (a) above, the locations had to be selected without knowing whether they were correct or not.
(d) “/7/f [Mr. Doerr] made a false allegation as to the description of the property and the staking of the corners” there “is no showing of an intent to defraud” the Henrys because the defendants had every opportunity to inspect and the plaintiff, Mr. Doerr, “even attempted to assist in the inspection but could not find the stakes.” (Emphasis added.) Certainly the trial court did not find that Mr. Doerr did not make a false representation concerning the quantity of the land he had for sale.
(e) And finally, the trial court concluded that absent a showing of “an intent to defraud,” the defendants had failed to make out a case of fraud.

Thus it can be seen that the trial court’s conclusion that the defendants had not proved a case of fraudulent inducement of the contract was not based on a finding that the Doerrs had not induced the defendants to enter into the contract by misrepresenting the quantity of the property they had for sale, but on a finding that the Doerrs did not intend to defraud, which the court erroneously considered to be an essential element of the pleaded fraud — another error of law. In this regard we note that such finding was based on the further findings of what might be called the contributory negligence of the defendants in failing to (1) hire a lawyer; (2) hire a surveyor; (3) investigate further by talking to local inhabitants, all of whom were aware, in effect, that no one knew where any of the Pauline Bailey Survey lot lines were and (4) that the defendants made unnecessary improvements on some of the property. It goes without saying that fraud is a tort which contemplates that the buyer may rely on the forthright honesty of the seller and the correctness of his plats. The buyer had no duty to hire or interview others; and it is not a defense available to the seller of land that the buyer had no right to rely on the seller’s representations concerning the quantum and location of the land being offered for sale.

The foregoing analysis of the trial court’s review of the evidence makes it clear that although this court may disagree with the trial court’s finding concerning the Doerrs’ intent, we have not found it necessary to disagree with any material fact found by the trial court essential to the establishment of liability. We disagree primarily on the relevant law and its application to the basic facts accepted as true by the trial court.

As we pointed out in our opinion, actual fraud as defined by statute does not require that a false representation of a fact, or suppression of a material fact, be made with intent to deceive, but such fraud can also consist of “inducing” another “to enter into a contract.”

Here, it is undisputed that the defendants were induced to enter into subject land transaction by the quantum of land represented in the two plats attached to the contract which were prepared at the request of the plaintiffs and based on information the plaintiffs supplied to Lambert. This, coupled with the trial court’s finding that everyone living in the area knew that the Bailey survey lines were apparently not locatable, means that since the plaintiffs lived in the area, they knew it too, and having made a partial disclosure concerning the extent and location of their land, the plaintiffs were bound to reveal the rest of the story, namely, that they did not know where the boundary lines of Lots 31, 32 and 33 were. It is undisputed this vital information was suppressed.

The court does note, however, that an error was made in the damage award complained of. With respect to Mr. Henry’s lost earnings this court awarded $45,000, when in fact the evidence presented at trial reflected an income reduction between 1984 and 1985 of only $40,191. At the same time we note that a substantial item of the relief pled and proved by the defendants was for rescission of the contract and restitution of the $40,000 they paid down on the subject property.

*681Finally, this court concludes that the defendants’ claim for lost earnings should be denied because the evidence supportive of this element of damages lacks reasonable certainty. Plummer v. Fogley, 363 P.2d 238 (Okl.1961). The defendants’ judgment is therefore modified to decrease the award to $63,649.70 which includes the restitution of the down payment and consequential damages sustained as the result of the plaintiffs’ fraud.

The plaintiffs’ petition for rehearing as supplemented is denied.

REIF and STUBBLEFIELD, JJ., concur.