#### CORBETT L. SILVER and Wife, IDA CARSON SILVER, v. T. H. SKIDMORE.

(Filed 23 March, 1938.)

1. Fraud § 11 — Evidence held for jury on issue of fraudulent misrepresentation and damages in sale of land by vendor.

Plaintiffs alleged that defendant vendor represented that there was a sewer line along the highway in front of the property sold. The male plaintiff testified that defendant made such representation to him, told him that the house on the adjacent property was connected with the sewer and did not have a septic tank, and that he told defendant he intended building a house and that he would not buy property requiring the use of a septic tank under any circumstances, which testimony was corroborated by his brother. Plaintiffs also introduced evidence that plaintiffs relied and acted upon the representation in regard to the sewer line, that there was no sewer line along the highway, and that a septic tank was used for sewage disposal on the adjacent property, and that the value of the land was less without an available sewer. Defendant testified that he told the male plaintiff he thought there was an available sewer and that plaintiffs made their own investigation, and introduced evidence contradicting plaintiffs’ evidence in other material aspects. Held: The defendant’s motion to nonsuit was properly denied by the original trial court, and the conflicting evidence was properly submitted to the jury on the issues of fraudulent misrepresentation, injury and damage.

2. Appeal and Error § 21—

Where the charge of the court is not in the record, it will be presumed that the questions of fact were properly submitted to the jury.

Appeal by plaintiffs from Johnston, J., at November Term, 1937, of BUNCOMBE.

Tbe plaintiffs recovered judgment in tbis action in tbe general county court of Buncombe County, but upon appeal of defendant to tbe Superior Court tbe judge sustained tbe exceptions of tbe defendant to tbe refusal by tbe trial judge to dismiss tbe action upon a demurrer to tbe *232evidence, and remanded tbe case to tbe general county court for judgment as in case of nonsuit. To tbe ruling of tbe judge of tbe Superior Court tbe plaintiffs excepted, and appealed to tbe Supreme Court. Reversed.

Geo. M. Pritchard and M. A. James for plaintiffs, appellants.

Harkins, Van Winkle & Walton for defendant, appellee.

Schenck, J.

Tbe plaintiffs instituted tbis action to recover damages alleged to bave been sustained by reason of false and fraudulent representations made by tbe defendant to tbe plaintiffs relative to tbe existence of a sewer line in tbe street in front of a 12%-acre tract of land conveyed by tbe former to tbe latter, and tbe absence of a cesspool or septic tank for sewage disposal for tbe bouse on said tract of land. Tbe principal allegations in tbe complaint are in tbe following words:

> “4. Tbat, prior to purchasing said lands of tbe defendant, tbe plaintiff, Corbett L. Silver, expressly informed tbe defendant tbat it was tbe intention of said plaintiff to erect a nice residence on said tract of land on a ridge about 50 feet distant from said Padgett Town Road, and then and there expressly inquired of tbe defendant as to whether there was a regular sewer main along said road and opposite tbe place where plaintiff informed tbe defendant be intended to erect said residence, whereupon tbe defendant then and there assured tbe plaintiff tbat there was at tbat time a sewer main at said point on said road to which tbe plumbing and sewer system of said contemplated residence could be connected.

> “5. Tbat at tbe time tbe plaintiff made said inquiry as to tbe location of said sewer main along said road at said point the plaintiff also made inquiry as to whether tbe plumbing system of a residence already constructed on said lands, about 400 feet from said contemplated residence, was connected with said sewer main along said road in front of tbe residence already constructed and was then and there told by tbe defendant tbat such was tbe case.

> “6. Tbat relying upon and solely by reason of tbe defendant’s said statement and assurance tbat a sewer line was laid along said highway in front of tbe residence already constructed and in front of tbe location of said contemplated residence, and solely by reason of said statements and assurances tbe plaintiff agreed to purchase said l^Ys acres of land at said price and parted with $1,100 cash of tbe purchase price and together with bis wife, tbe plaintiff, Ida Carson Silver, executed a promissory note to tbe defendant in tbe sum of $1,100, payable $100.00 each three months from 4 May, 1936, until paid, secured by a deed of trust on said lands and premises, and executed a note for $300.00 in payment *233of the realtor’s commission for negotiating said trade, the former of which notes, as plaintiffs are advised, informed, and believe are now held by the Wachovia Bank and Trust Company of Asheville for collection for the defendant.

> “7. That the plaintiffs were caused and induced to purchase said 12%-acre tract of land of the defendant solely by reason of the defendant’s said representation as to the location at said points on said road of a sewer main as aforesaid, and by reason thereof accepted said deed, paid said cash, and executed said promissory notes.”

The defendant filed answer and denied the foregoing allegations, except he “admitted that the plaintiffs executed their promissory note to the defendant in the sum of $1,100.00, and that the same is secured by deed of trust on said land and premises.”

After denying the defendant’s motion for judgment as in case of non-suit made when the plaintiffs had introduced their evidence and rested their case and renewed when the evidence on both sides was in (C. S., 567), the trial judge submitted the case to the jury upon the following-issues :

> “1. Did the defendant, T. H. Skidmore, falsely and fraudulently represent to the plaintiffs that the tract of land conveyed by him to the plaintiffs by deed bearing date 4 May, 1936, and recorded in the office of the register of deeds for Buncombe County, North Carolina, in Deed Book 478, on page 353, contained a regular sewer main as alleged in the complaint?

> “2. Were the plaintiffs injured and damaged by said false and fraudulent representations ?

> “3. What damages, if any, are the plaintiffs entitled to recover?”

The first and second issues were answered “Yes” and the third issue “$400.00.”

From judgment on the verdict the defendant appealed to the Superior Court, and from judgment in the Superior Court reversing the judgment of the county court the plaintiffs appealed to this Court, assigning as error the action of the Superior Court judge in sustaining the exception of the defendant to the refusal of the trial judge to grant his motion for judgment as in case of nonsuit.

The sole question presented on this appeal is: Was there sufficient evidence introduced to carry the case to the jury? After a close examination of the record we are constrained to hold that the question should be answered in the affirmative.

The plaintiff, Corbett L. Silver, testified: “I know the defendant, T. H. Skidmore. I first became acquainted with him April, 1936. . . . It (the 12%-acre tract) is 765 feet on the Rainbow Ten-ace Road. . . . The first talk I had with Mr. Skidmore about this *234property be was called to Mr. Rowland’s office to describe tbe property and tbe terms. ... I asked Mr. Skidmore if tbis bouse (referring to tbe residence that was already on tbe tract wben plaintiff purchased it) was connected with a sewer. He said it was. I told bim I wanted to buy it. ... I asked bim if there was a sewer line there. He said there was. He said tbe bouse there was connected to it. ... I asked bim especially about a sewer, that I was going to build another bouse. He says, ‘There is no cesspool, but that it connected with tbe city pool (sewer) of Black Mountain, runs with that street or road.’ . . . I said I wouldn’t have a septic tank under no consideration. I called it that and be called it a cesspool. He said there was no cesspool, but that it connected with tbe city sewer of Black Mountain, that it ran with that road. ... I said I would not have tbe property under no consideration where I bad to use a septic tank. I told bim I bad bad previous experience and that it was not satisfactory, tbaf I would not have a piece of property where I bad to use a septic tank.”

J. W. Silver, brother of tbe plaintiff, testified: “My brother asked Mr. Skidmore in Tom Rowland’s office what tbe sewerage was. He said it was connected with tbe city sewerage, says, ‘There is no cesspool there.’ That is tbe Black Mountain City sewerage. He says, ‘There is no cesspool there.’ My brother told bim be would not have a place where a cesspool was because be bad been bothered with one where be lived.” There was other evidence corroborative of tbe plaintiff’s testimony.

The defendant testified: “As I recall it, Mr. Silver spoke about a sewer at that time. I told bim I have no knowledge of a sewer, but I understood there was a sewer available. I have been told that. I told bim I bad not ever made any investigation. Nothing else was said at that time except tbe terms, as I recall. That conversation did not exceed five minutes. I never saw Mr. Corbett Silver, plaintiff in tbis action, after that time.” There was other evidence corroborative of tbe defendant’s testimony.

There was evidence tending to show that tbe plaintiffs relied and acted upon tbe representations made by tbe defendant as to tbe sewer and tbe absence of a cesspool or septic tank, and there is evidence that tbe plaintiffs did not so rely or act, but made their own investigations and relied and acted thereupon.

All of tbe evidence is to tbe effect that there is no sewer in the street in front of tbe tract of land sold by tbe defendant to tbe plaintiffs, and that tbe bouse on said tract of land used a cesspool or septic tank for sewage disposal, and that tbe value of tbe tract of land is less without an available sewer than it would be if a sewer was available in tbe street in front thereof.

*235Tbe contradictory evidence of tbe plaintiffs and defendant raised questions of fact wbicb could be clearly presented upon tbe issues upon wbicb tbe case was tried, and, in tbe absence of tbe charge from tbe record, tbe questions of fact are presumed to bave been properly submitted to tbe jury.

While tbe jury might bave been entirely justified in answering tbe issues in favor of tbe defendant, we cannot concur with tbe bolding of tbe judge of tbe Superior Court to tbe effect that there was no evidence of tbe plaintiffs’ alleged cause of action.

This case is governed by tbe principle enunciated in Haywood v. Morton, 209 N. C., 235, wherein is quoted tbe following from Ferebee v. Gordon, 35 N. C., 350, to wit: “When, therefore, in a contract of sale tbe vendor affirms that wbicb be either knows to be false or does not know to be true, whereby tbe other party sustains a loss, and be acquires a gain, be is guilty of a fraud for wbicb be is answerable in damages. When, therefore, sued for a deceit in tbe sale of an article, be cannot protect himself from responsibility by showing that tbe vendee purchased with all faults, if it appear that be resorted to any contrivance or artifice to bide tbe defect of tbe article or made a false representation at tbe time of tbe sale.”

We are of tbe opinion, and so bold, that tbe judge of tbe. Superior Court was in error in sustaining tbe exception of tbe defendant to tbe refusal of the trial judge to grant tbe motion for judgment as in case of nonsuit, and the case is remanded to tbe Superior Court for judgment in accord with this opinion.

Reversed.