
    Port v. Williams.
    A motion to strike out does not perform the office of a demurrer, either under the old or now practice.
    Where the matter contained in a paragraph of an answer is insufficient as a defence to the action, yet if it is pertinent to the case and does not appear to he a sham defence, it can not he struck out on motion.
    
      
      Wednesday, May 30.
    The vendee of land can not maintain an action against the vendor for a misrepresentation of the quantity of cleared ground on the premises, where he has himself had opportunity to judge, and ample means within his reach to form a correct estimate, and appears to have relied on his own judgment.
    APPEAL from the Fayette Circuit Court.
   Stuart, J.

Action on the case commenced in March, 1853, by Williams against Port for an alleged misrepresentation in the sale of lands. Verdict and judgment for 1,800 dollars. The evidence is all in the record in proper form.

It appears that Port advertised his farm for sale in one of the Cincinnati papers, representing it to contain seven hundred and twenty acres, of which four hundred acres were improved and in a high state of cultivation. Attracted by this notice, Williams, prior to his purchase, repaired to Port's in person and examined the premises.

The alleged false representation made before the sale, but not embraced in the terms of the contract, was, that there were four hundred acres cleared; whereas it is averred that not more than three hundred and ten acres were cleared.

For this alleged deficiency in the quantity of cleared land, this action was brought.

A preliminary question might arise, whether the parties could go behind the writing—whether that would not be presumed to contain the whole mind of the contracting parties. 8 Blackf. 237.—Id. 277.—Id. 295.-2 Ind. 477.— Id. 656.—7 Blackf. 432. On the other hand, in ascertaining the facts as connected with the execution of any written instrument, parol evidence is admissible. The Mechanics’ Bank v. The Bank of Columbia, 5 Wheat. 326. But as its determination, even adversely to Williams, would not go to the merits of the case, but only serve to drive him into Court to reform the written contract, the material questions presented in the record may as well be met at once.

The first point raised is on striking out part of the answer. The paragraph which, on motion of the plaintiff, was stricken out, was, in substance, that before the contract, &c., Williams and Port went over the land with a view to estimate the quantity under cultivation; that Pori’s estimate was four hundred acres— Williams’ less than three hundred; that thus the quantity of cleared land was unsettled—a mere matter of opinion with both.

The motion to strike out was sustained. This was erroneous. In any phase of the case, it was material to Port to be able to show that there was no warranty as to the quantity of cleared land; that it was a mere matter of opinion and discussion between the parties, with equal means of knowledge; and that their views were not concurrent. If Williams wished to test the sufficiency of this plea, he should have demurred. A motion to strike out does not perform the office of a demurrer, either under the old or new practice. Whether it was a sufficient defence to bar the action was wholly immaterial. It was, at least, such pertinent matter as the Court ought not to strike out on motion. It was not so irrelevant as to warrant that; it was not a sham defence. 2 R. S., 44. We are therefore of opinion that the Court erred in sustaining the motion to strike out.

The second question arises on the alleged misrepresentation as to the quantity of cleared land. The contract is silent on that point.

Had Williams, relying on the advertisement in the Cincinnati paper, purchased without seeing the land, the case would have come within the rule in Van Epps v. Harrison, 5 Hill 63. But the purchaser did not, in that case, make personal inspection. He trusted to the written representations of the vendee as to its condition, and consummated the contract without seeing the premises. Instead of being level and fit for building lots, as represented, it turned out to be broken and hilly. The Court held that for the misrepresentation, under these circumstances, an action would lie.

But this is a very different case. Williams did not trust to the Cincinnati advertisement. That seemed to have no other effect than to call his attention to Port’s farm. He accordingly repaired to the premises in person, inspected them several times, and actually made an estimate of the quantity of cleared land before the contract was completed. In view of this evidence, it can not be said that Williams placed a known trust and confidence in Port, and acted on Port’s opinion, within the ruling in Shaeffer v. Sleade, 7 Blackf. 178, or Van Epps v. Harrison, 5 Hill, supra. For his controversy with Port about the quantity seems to have put him upon inquiry. He accordingly set about the investigation, inspected the land for himself, and made his own figures.

In this instance, therefore, the vendee was dealing on equal terms with the vendor, about a matter the truth of which was equally open to both. As farmers, accustomed to make rough surveys with the eye, sufficiently accurate for ordinary purposes, both exercised their judgment, and came to different conclusions. Thus put upon inquiry, instead of taking a written warranty from Port, or calling in a surveyor to settle them difference, Williams either trusted to his own powers of observation, or, what is more likely, treated the point in dispute as unimportant. Hence the silence of the contract.

We are therefore of opinion that Williams, having thus trusted to his own judgment on a matter about which he had ample opportunity to judge, and ample means within his reach to come to a correct conclusion, was not deceived by Port’s advertisement or Port's representations; and has, therefore, no right of action.

In these views we are fully sustained by the authorities. Sanborn v. Stetson, 2 Story R. 481.—Hugh v. Richardson, 3 id. 659. In this latter case, it is held, that when a purchaser, with full means of knowledge within his reach, relies on his own judgment, even a Court of Equity will not grant relief.

This case is very clearly distinguishable from those referred to in argument. The cases cited relate chiefly to the identity of the tract of land sold—not to its quality or external condition. Thus if the vendor undertake to identify the land, he is bound to a correct description of it. It is impliedly warranted that he is selling the identical tract of land he has described. Cowger v. Gordon, 4 Blackf. 110.—Id. 231. So, also, as to a privilege represented to be annexed to the land, which in fact is not. Monell v. Colden, 13 Johns. R. 395. These cases, no doubt, lay down the law correctly; but it is clearly not the law applicable to the facts before us.

J. Rariden, for the appellant.

J. A. Fay and N. Trusler, for the appellee.

It is not necessary to examine into the proper criterion of damages in eases of misrepresentation. Williams, not being entitled to recover, that question does not arise in the record.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  