Judd v. Walker

215 Mo. 312 (1908)

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Nature of the Case

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Facts

Naxera (D) owned two tracts of land. Walker (D) was Naxera's (D) agent to sell them. Bourland was P's agent to buy them. The land was irregular in shape. The land was irregular in shape. Walker (D) informed Bourland that the two pieces of land, which were adjacent contained one hundred and seventy-eight acres, one piece containing eighty acres and the other ninety-eight acres, and offered the tract at forty dollars per acre. Bourland agreed to purchase the lands as soon as Walker (D) could procure satisfactory abstracts, conveyances, etc. At the time of executing this contract, Walker (D) said he was not sure of the number of acres in excess of ninety, and therefore they had better put in the contract the round number of ninety acres and would ascertain definitely thereafter. A month later Walker (D) drew up a deed which was executed by Naxera (D) and acknowledged before Walker (D) as a notary public, which deeds purported to convey two tracts of land mentioned, one hundred and seventy-eight acres. 'It was shown by the evidence both of Walker (D) and Naxera (D), as well as otherwise, that each of them knew there were not one hundred and seventy-eight acres of the land; that Naxera (D) claimed to own one hundred and sixty acres only, and that he refused to execute the deed for one hundred and seventy-eight acres at Walker's (D) request and finally consented to do so upon Walker (D) giving him a written obligation to hold him harmless in event the shortage of acres was discovered, and he would be called upon to make good. Naxera (D) received pay for one hundred and sixty acres of the land at forty dollars per acre, less Walker's (D) commission, a total of $640. P caused the land to be surveyed and ascertained that it contained 153.24 acres only there being a shortage of 24.76 acres. P sued Ds for fraud and deceit to recover this shortage at forty dollars per acre. The court peremptorily instructed the jury that the finding should be for the defendant. In obedience thereto, the jury returned a verdict as directed. The court held that P ought not rely on statements of acreage and that the parties were upon the land and the means of information were equally open to both, therefore the rule caveat emptor applies, as the true number of acres could be ascertained by ordinary vigilance on the part of the purchaser. After unsuccessful motions to set the same aside and for a new trial, P appealed.