If it could be affirmed as a matter of law that the averments of count 2 of the complaint, as last amended, show "a sale in gross," we are not of opinion that this fact would relieve the defendant of liability for damages resulting from a fraudulent representation as to the frontage of the lot. Harton v. Belcher, 195 Ala. 186, 70 So. 141; King v. Livingston Mfg. Co.,180 Ala. 118, 60 So. 143; Berry v. Wooddy, 16 Ala. App. 348,77 So. 942; Gralapp v. Hill, 205 Ala. 569, 88 So. 665.
The cases cited and relied on by the appellant — Cox v. Collins, 205 Ala. 491, 88 So. 440, was for breach of contract to convey, and Terry et al. v. Rich, 197 Ala. 486, 73 So. 76, was for breach of warranty, in which the question of fraud was not an element, and the utterances in those cases are not applicable here.
Nor is the case of Carter v. Beck, 40 Ala. 599, *Page 562 and other authorities of the same tendency, holding that the acceptance of a deed by a purchaser is a complete execution of an antecedent agreement to convey, and annuls it, and that the purchaser cannot thereafter maintain an action on the antecedent agreement, applicable to the case here presented. In accepting the deed, the plaintiff may have relied on the truth of the representation of the defendant that the lot fronted 50 feet on the Bessemer road. 20 Cyc. pp. 86-89; 27 Rawle C. L. 379, § 81.
The plaintiff's case as referred to count 2 of the complaint in no way rests upon a disaffirmance of the sale or rescission of the contract, or any part to it. It rests upon deceit practiced by the defendant in falsely representing that the lot had a frontage of 50 feet on the Bessemer road; hence Blackmon v. Quennelle, 189 Ala. 630, 66 So. 608, which was an action "for the breach of an express covenant of warranty in a deed," in which the defendant was denied the right to retain the purchase money and defend against the warranty of her deed as against a claim for unpaid taxes, is not an apt authority.
The plaintiff in this case, who had paid all the purchase money, and was in possession, had the right to retain the property, and, if he was misled to his injury by the fraud of the defendant, maintain an action for deceit. Maxwell v. Sherman, 172 Ala. 626, 55 So. 520; 27 Rawle C. L. 379, § 81.
To use the language of the authorities, "he who affirms either what he does not know to be true, or knows to be false, to another's prejudice and his own gain, is, both in morality and law, guilty of falsehood, and must answer in damages." Munroe v. Pritchett, 16 Ala. 785, 50 Am. Dec. 203; Harton v. Belcher, 195 Ala. 186, 70 So. 141.
The trial was by the court without a jury, and the evidence as to the material facts relating to the issue was in sharp conflict, yet there was evidence which, if believed, is sufficient to support a finding for the plaintiff. Under these circumstances the trial judge was in a better position than we to judge of the credibility of the testimony, and his findings on the facts will not be disturbed.
On the question of damages, which the appellant insists are excessive, the measure is the difference between the value of the property as it is and what its value would have been had it been as represented. Maxwell v. Sherman, supra. On the question of damages the plaintiff offered the testimony of three witnesses tending to show that, if the property had been as represented, it would have been worth from $1,250 to $2,000 more than what it was, while the defendant was content to rest this phase of his case on his own statement that —
"In my opinion the difference between the value of a 40 foot and a 50 foot lot out there amounts to very little, if anything."
In view of the testimony, we are not willing to hold that the damages awarded were excessive. Curb v. Stewart, Adams Co., ante, p. 511, 110 So. 804.
There are no reversible errors shown by the record.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.