Lamm v. Port Deposit Homestead Ass'n

Stewart, J., delivered the opinion of the Court. The appellant alleges as the ground of his complaint, that the agent of the appellee, at a public sale of the house and lot, made by the said agent, on account of the default of payment of a mortgage thereon, held by the appellee, represented, upon enquiry being made of him, by the appellant, that possession of the property would be given to the purchaser, within three months from the day of sale. That confiding in this representation, he was induced to bid for the property, and became the purchaser thereof. Possession not having been given him according to the representation, and having lost the rents thereof in the meantime, and incurred expense in obtaining possession, this action was brought to recover damages for the same.

At the trial the appellee asked to have the jury instructed substantially, that such representation was not binding on it, and the appellant could not recover thereon. 1st. Because the agreement was not reduced to writing and signed by the defendant or its duly constituted attorney. 2nd. Because there is no evidence that the agent was authorized by the appellee to make such contract. ²⁴⁰ The Circuit Court granted this prayer, and the question is, was any error committed thereby ? The fourth section of the Statute of Frauds refers by its terms and meaning to contracts for the sale of lands, &c., or any interest in or concerning them, and not to collateral or independent undertakings outside of such contracts, and does not apply to the representation, if any, made at the sale in question.

It was but the assertion of the agent at the time of the contract for the sale of the land, in relation to a different proposition, and formed no integral part of said contract, and its non-performance would not necessarily break up the contract for the sale of the land, unless it might so operate by reason of any fraud connected with the sale, which would stand on different ground. If the representation were made fraudulently to induce the purchaser to bid for the propertjr, and he was induced thereby to.buy the same and sustained damage, he would be entitled to recover for the tort, fraud or' deceit. Besides, the fraud would constitute ground for the Court of equity to refuse to ratify the sale. The agent, and principal if it authorized the representation to be made, would both be answerable.

The cases of Lamborn vs. Watson, 6 H. & J., 252 , and Duvall vs. Peach, 1 Gill, 172 , relied upon by the appellee, recognize this distinction. See also Benjamin on Sales, 419. Although the representation might be false in fact, if innocently made by the agent, believing in the truth of what he asserted, it would afford no ground of action. To constitute the fraud and deceit, the representation must be false and knowingly made.

The concurrence and fraudulent intent and false representation, and damage resulting therefrom, constitute the ground of action. Benjamin on Sales, 338. What constitutes fraud cannot be precisely defined. Every kind of artifice employed by one person to deceive ²⁴¹ another, if he is deceived thereby, however false and dishonest, and made to deceive, will not constitute a fraud, supporting the right of action, if the other party knows they