Gunby v. Sluter

Bartol, C. J., delivered the opinion of the Court. The appellee agreed to purchase from the appellant a house and lot in the City of Baltimore for $5500, and paid her $1000 on account of the purchase money, and has brought this suit to recover back the money so paid. The plaintiff places his right to recover upon two grounds, first, because the defendant represented her title ²⁴⁶ to the property to he in fee-simple, and that the representation was untrue; and. secondly, because the agreement of purchase was rescinded and abandoned by mutual consent, an.d the defendant promised to repay the $1000. A good deal of testimony was offered on both sides, some parts of it quite contradictory — not an unusual occurrence where the parties themselves are witnesses.

The bill of exceptions raises no question upon the admissibility of any of the evidence. In the argument in this Court, the appellant’s counsel has called our attention to the objection which was made on her part, to a portion of the testimony of Jeremiah H. Sluter, this objection was interposed during the progress of his examination, but was not insisted on, and the testimony was admitted subject to exception. “The Court was not called on at any subsequent stage of the trial to exclude it, and exception taken to its refusal so to do.” Under these circumstances we cannot notice the objection ; it is settled by the cases of Coates & Glenn vs. Sangston, 5 Md., 121 , and Basshor & Co. vs. Forbes, 36 Md., 154 , that the question of the ■ admissibility of the evidence is not before us for review, unless it has been raised- in and decided by the Court below. The only questions for our consideration arise upon the prayers, and the instruction given by the Superior Court to the jury. There was evidence tending to prove that during the negotiations for the sale, the appellant represented that she held a fee-simple estate in the property, and that in fact she held only a leasehold estate, as assignee of a sub-lease, whereby the property was subject to an annual ground-rent of one cent, if demanded, and that it was further subject, together with other property, of which it formed a part under the original lease, to two ground-rents, one of $216, and the other of $12 per annum.

There was also evidence tending to prove that after the payment of the $1000 the appellee made objection to the ²⁴⁷ title, and that by agreement the contract of purchase was rescinded and abandoned, and the appellant promised to repay the money. If these facts were found by the jury, and stood alone, there could be no doubt or question of the right of the appellee to recover. It is laid down in Comynon Contracts, 3rd vol., 304: “ If a contract is made for the sale of lands or houses, either by public or private contract, and a deposit, or other sum of money is paid thereon, and it afterwards appears that any material representation or improper description has been made, either by the vendor himself, or by his agent or auctioneer employed to sell, the vendee may disaffirm the contract, and recover back the money so paid, by action of indebitatus assumpsit. Norfolk vs. Worthy, 1 Camp., 337; Farrar vs. Nightingal, 2 Esp.

R., 639. The vendor must be prepared and able to convey and transfer to the purchaser an estate or interest substantially corresponding with that bargained for and agreed to be sold, both as regards the tenure and the situation and condition, and natural advantages of the property. Any misdescription of the estate or interest, or of the nature or situation, or extent or value of the property in a material and substantial point, so far affecting the subject-matter of the contract, that it may reasonably be supposed that but for such misdescription, the contract would never have been made, at once releases the purchaser from the bargain.” Addison on Contracts, 84, (6th London Ed.) ; Rayner vs. Wilson & Hunting, 43 Md., 440 . The appellant’s counsel has argued that such.misrepresentations as are here alleged, will not avoid the contract unless made fraudulently, and that, they do not constitute fraud, unless they were made wilfully and knowingly.

But it is settled that if they are material and substantial, they vitiate the contract, though made by mistake, being to the advantage of the party making them. As said by Sir Edwakd Sugdbn, “The only question is whether they ²⁴⁸ are false, the seller was hound to know what it was, as she professed to state it, and to state it truly. It is immaterial whether she misstated it wilfully, if she stated it falsely.”’ Sugden on V. & P., 28, ch. 1, .sec, 2, pl. 44, (14th London Ed.) See Wood vs. Keep, 1 Fos. & Fin., 331; Wood vs. Scarth, 1 Fos. & Finn., 293. Upon the theory of the case as presented by the appellee, these authorities clearly establish his right to recover ; but there is evidence in the cause in conflict with this theory, and which the appellant contends, establishes a good defence.

The points relied on in defence are ; — first, with respect to the alleged misrepresentations, that they furnish no sufficient ground to entitle the plaintiff to rescind the contract, and recover back the money paid, because, before the payment of the money, the deed of the defendant disclosing the nature of her title, had been placed in the hands of the plaintiff, and had been examined by his