Pollard v. Lyman, 1 Day 156

By the Court. The disclosure, which admitted none of the facts alleged as fraudulent, and denied them all, was conclusive with respect to those facts. Chancery power to compel a disclosure, has, by the practice of this State, from the beginning, been limited to the case of there being no other evidence. To have extended it further would have been an unnecessary departure from the common law, and an unnecessary exposure to imminent danger of perjury.

A plaintiff, therefore, to entitle himself to a discovery, avers in his bill, that the facts respecting which he prays a disclosure, rest solely in the knowledge of the defendant, or of the defendant and himself; and to permit him, after disclosure is obtained, to produce other evidence in proof of those facts, is to permit him to falsify himself, and to trifle with the Court, and the conscience of his adversary.

The Court having found that Pollard and Pickett were able to respond any damages, that might be recovered of them, in any suit upon the covenants of the deed, if they liad been broken, the question of die title was laid out of the case. They further found, that the lands sold to Ely were, at the time of the purchase, represented and held out to him, by the respondents, as being of great value, in point of quality, and their relative situation with the lands in the County of Wythe, which he had viewed, and which were valuable for settlements.

If “ represented and held out, as being of great value,” mean any thing more than the exhibition of the plan, which is included in the next finding; — if it mean, that Pollard and Pickett affirmed the lands to be of a great value, or that they were located in the midst of a well settled country, — the affirmations alleged in the bill, and which the disclosure had denied, — the finding must have been without evidence, or upon evidence which was inadmissible, and inoperative.

The only defects, or misrepresentations of the plan, specifically charged in the bill, were, that it delineated many water-courses, well interspersed, and connected with rivers of extensive communication, some of which water-courses did not, in fact, exist, and others were misplaced ; a.nd, that it represented the land to be of great value, when, in fact, it was of no value. That the plan represented the land to be of great value, otherwise than by a demarcation of water-courses, which might create a presumption of fertility, and of easy access, wras not alleged.

Nor does it appear, from the finding of the Court, that the demarcation of the watercourses, was, at all, incorrect; the finding is silent with respect to them. And as to any facts found respecting the plan, which were not charged so specifically, that the adverse party had notice to contest them, it is not material what they amount to.

It may be proper, however, to notice, that whatever misrepresentations the plan may have contained, it was not found, that- Ely was induced by it to purchase, nor that Pollard and Pickett knew it to be incorrect, or had any agency in making it, or procuring it to be made ; and, indeed, the reverse of all these facts is apparent from the disclosure, so that the allegation wholly fails. The Court further, and finally, found, that the land was of no value.

Mere loss in a bargain, — loss resulting not from fraud, nor the failure of a warranty, but from bad calculation, or the want of vigilance, is not a ground for relief. It could not be admitted as a ground, without rendering all express contracts futile. As to the doctrine of implied warranty, that the

article sold is of the ordinary quality of articles of its kind, or equal throughout to the sample seen, it applies only to articles susceptible of a standard quality, or which are sold by samples, and does not extend to lands which have no standard quality, and must depend, for their value, on a variety of circumstances, none of which are reducible to a common measure. Nor does the doctrine of the failure of the consideration reach this case. It readies no case, where the purchaser obtains the

article contracted for, and the purchase was not induced by fraud, nor the quality of the

article warranted. It is not having the stipulated consideration, and not its -want of value, which the doctrine respects. In this case, it must be understood, as there is nothing either expressed or implied to the contrary, that the purchaser took- upon himself tile risque of the quality, or value, of the land, which lie improvident!}' purchased unseen. And as to fraud, it does noi appear, that the seller practised any addres's whatever; though it is not every species of adr dress that vitiates a contract.

If the address be such only as the purchaser, bv due diligence and circumspection, might guard himself against, — that is to say, such diligence and circumspection, as in the ordinary course of business usually accompany similar transactions, he is without remedy. There not appearing, then, from the record, any sufficient ground to warrant the decree of the Superior Court, it is reversed.