Opinion
No. 37100.
June 13, 1949.
1. Appeal — chancellor's decree, effect of on the facts.
A decree of a chancellor will not be reversed unless it is manifestly erroneous, and must be affirmed if there is sufficient substantial evidence to support it, but in the absence of such support or where the overwhelming proof stands as a barrier to affirmance, it is the duty of the Supreme Court to reverse.
2. Fraud and deceit — representations of seller — right of purchaser to rely thereon.
A purchaser has the right to rely upon the representations of a seller as to facts within the latter's knowledge, and the seller cannot escape responsibility by showing that the purchaser upon inquiry might have ascertained that the representations were untrue.
3. Fraud and deceit — contributory negligence.
Contributory negligence is not a defense to an action based on fraud.
4. Fraud and deceit — false statement, when may be accepted without inquiry.
A false statement made by one who may be fairly assumed to know what he is talking about may be accepted as true without question and without inquiry although the means of correct information are in reach.
5. Fraud and deceit — great weight of the evidence — decree against.
When the testimony by several disinterested as well as interested witnesses clearly showed that the seller represented to the purchaser that there were not less than 5000 cultivatable acres within protection of levee and yet there were in fact only about 3500 such acres, and the only denial of the false representations was by the unsupported testimony of the seller which within itself was full of contradictions, and evident errors, the decree for the seller denying damages for the deceit was reversed as being manifestly wrong.
6. Appeal — reversal — remand for ascertainment of damages.
Where upon appeal the supreme court is of the opinion that the purchaser of land was entitled to recover damages for fraud and deceit in the purchase transaction but the record does not contain data upon which the amount of the damages may be calculated with sufficient certainty, the case will be remanded to the trial court for the ascertainment thereof.
7. Fraud and deceit — damage to land by seepage.
When a purchaser has sued for damages for deceit, alleging that the seller had represented that the lands were not subject to seepage water, and among the items of damages were damages not only to the lands but to certain crops from seepage waters a denial of such damages when the denial is substantially supported by the evidence will not be reversed.
8. Vendor and purchaser — location of lines of lands purchased — survey — when not necessary.
When a vendor of land had contracted to locate the corners and lines, and his agent who was entirely familiar therewith pointed out the lines and corners soon after the purchaser went into possession, there was a sufficient compliance with the contract as against the purchaser's insistence upon a survey, there being no specific provision in the contract for a survey.
Headnotes as approved by Hall, J.
APPEAL from the chancery court of Humphreys County; J.L. WILLIAMS, Chancellor.
Dent Ward, Means Johnston, and Forrest B. Jackson, for appellants.
A. Appellants' proof of false and fraudulent representations made by appellee is clear and convincing. McCain, et al. v. Cochran, et al., 153 Miss. 237, 120 So. 823; Hunt v. Sherill, 195 Miss. 688, 15 So.2d 426; McNeer Dodd, et al. v. Norfleet, et al., 113 Miss. 611, 74 So. 577; Vincent v. Corbett, 24 Miss. 46, 47 So. 641, 21 L.R.A. (N.S.) 85; Estell v. Myers, 54 Miss. 174; Marknowsky v. Rubenstein, et al., 124 Miss. 724, 87 So. 278; Lundy v. Hazlett, 147 Miss. 808, 112 So. 591; Dunn v. Dent, et al., 169 Miss. 574, 153 So. 789; Streeter, et al., v. State, 180 Miss. 31, 177 So. 54, 56; Oldham v. Stone Gravel Co. (Miss.) 111 So. 357, 358; Alexander v. Meek, et al., 132 Miss. 298, 96 So. 101, 102; Sojourner Co. v. Joseph, et al., 186 Miss. 755, 191 So. 418; 23 Am. Jur. Section 145, page 946; Nash Miss. Valley Motor Co. v. Childress, 156 Miss. 157, 125 So. 709.
B. Proof shows that appellee knew how many acres of cultivatable and non-cultivatable land he owned, and he so advised appellants. Alexander v. Meek, et al., supra; Allen v. Luckett, 94 Miss. 868, 48 So. 186, 136 Am. St. Rep. 605; Oswald v. McGehee, 28 Miss. 340; Rimer v. Dugan, 39 Miss. 477, 77 Am. Dec. 687; Davis v. Heard, 44 Miss. 50; Lundy v. Hazelett, supra; Vincent v. Corbitt, supra; Alexander, et al. v. Meek, et al., supra; Hines v. Lockhart, et al., 105 So. 449; H.D. Sojourner Co. v. Joseph, supra; Nash Mississippi Valley Motor Co. v. Childress, supra; McNeer Dodd, et al. v. Norfleet, supra.
C. Appellee has completely impeached his testimony.
D. Appellants relied upon the representations of appellee. 37 C.J.S. page 313, Fraud, Section 53; Oswald v. McGehee, supra; Davis v. Heard, supra; Vincent v. Corbitt, supra; McNeer Dodd v. Norfleet, supra; Alexander v. Meek, supra; Estell v. Myers, supra; Corley v. Reed, 164 Miss. 678, 145 So. 241.
E. Appellee has not complied with contract in locating property lines and corners. Webster's 20th Century Dictionary, page 973.
F. Oat crop on 580 acres lost as a result of misrepresentations of appellee.
G. Measure of damage for fraud and deceit. Hunt v. Sherill, 15 So.2d 426; 24 Am. Jur. 54, Sec. 287; Estell v. Myers, 54 Miss. 174, 56 Miss. 800.
H. Proof on the various items of personal property.
I. The chancellor was manifestly wrong. Teague v. Brown, 24 So.2d 726, 199 Miss. 262; Gerard v. Gill, 15 So.2d 478; Section 1745, Miss. Code of 1942; Section 661, page 28, U.S. Code.
We respectfully submit that appellants' proof is clear and convincing; that the major inducement for their execution of the contract for the purchase of this land was the positive assurance and guarantee by appellee that there were within the protection of the levee 5,000 acres of cultivatable land, and the further assurance by appellee that none of the land was subject to seep water. We believe that the proof clearly establishes the fact that appellee knew how many acres of cultivatable land he had within the protection of the levee, and that he did represent and guarantee to appellants that there were 5,000 acres. But regardless of whether or not appellee knew definitely how many acres of cultivatable land he had, the proof is quite clear that he and his agent, Mr. Sevier, represented to appellants as a positive fact that there were 5,000 acres of cultivatable land within the protection of the levee and that none of said land was subject to seep water. The decisions of our court have clearly established the rule that if the seller makes such representations whether he knows them to be true or not, he is bound by them.
We submit that the proof is clear and convincing that appellants did rely upon the statements and representations of Mr. Charping and his agent, Mr. Sevier. They had a right to rely upon them, and the purchase of the property was made in reliance upon these representations and not upon their own independent inspections of the land.
The rule for determining appellants' damages has been clearly established by our court, and appellants are entitled to recover from appellee the difference between what the land was worth as sold and what it would have been worth as represented by appellee. In addition thereto appellants are entitled to recover the cost of the seed and planting of the oat crop, the loss of which is a direct result of the false and fraudulent representations of appellee. The total of these items is $95,000.00.
We submit further that appellee has not complied with the provisions of the contract providing for the location of the property lines and corners to the further damage of $6,300.00 making a total loss of $101,300.00. We submit therefore that appellants are entitled to recover from appellee this amount and that the funds remaining in the hands of the escrow agent, which is considerably less than this amount, be impressed with a lien, and that the escrow agent be authorized and directed to deliver to appellants the sum remaining in its hands.
May we reiterate what we have already said, that the decision of the chancellor is manifestly wrong in that it is contrary to the overwhelming weight of the evidence. Unless it is reversed by this court and a decree rendered here for appellants they will have suffered great wrong and injustice as a result of the fraud and deceit of appellee.
There is no necessity for further proceedings before the chancellor, as the proof of appellants' damages is clear and convincing. If this court finds that the chancellor was in error and reverses him, which we confidently feel it will do, a judgment can and should be rendered in favor of appellants.
Clements Clements, for appellee.
A. The contract. 10 R.C.L. Sec. 222, page 1030; Red Snapper Sauce Co. v. Bowling, 95 Miss. 752, 50 So. 401; Bank of Lena v. Slay, 176 Miss. 825, 170 So. 635; Goff v. Jacobs, 164 Miss. 817, 145 So. 728.
B. There was no fraud or deceit practiced upon appellants by appellee or his agent. Fleming v. Miller, 124 Miss. 721, 87 So. 277; Corley v. Reed, 164 Miss. 678, 145 So. 241; Hall v. Thompson, 1 S. M. 443; McCain, et al. v. Cochran, 153 Miss. 237, 120 So. 823; Zogg v. Hedges, 152 A.L.R. 991; Heron v. McLean, 191 So. 59 (Miss.); Farrar, Adm'r., et al. v. John Churchill, Tr., et al., 135 U.S. 609-621, 34 L.Ed. 246; Pan American Petroleum Corp. v. Wood, 169 Miss. 562, 153 So. 793; Edrington v. Stevens, 148 Miss. 583, 114 So. 387; Coleman, et al. v. Kiernan (Ala.), 49 So. 230; Duy v. Higdon, (Ala.) 50 So. 378; Granberry v. Forrester, (Ala.) 97 So. 619; J.J. Newman Lbr. Co. v. Robbins, 34 So.2d 196 (Miss.); Gulf Research Development Co. v. Linder, 177 Miss. 123, 170 So. 646.
C. There was no misrepresentation as to seep water damage — nor damage by seep water.
D. Appellee complied with his duty under the contract to locate boundary lines.
E. The lower court properly found for appellee on the issue of personal property accounts.
F. The cases relied on by appellants in this suit do not apply. Fleming v. Miller, Corley v. Reed, Hall v. Thompson, McCain v. Cochran. supra.
G. Finding of fact will not be disturbed unless manifestly wrong. Stroud v. Loper, 190 Miss. 168, 198 So. 46; Rawlings v. Anderson, 149 Miss. 632, 115 So. 714; Terre Haute Cooperage, Inc. v. Branscome, et al., 35 So.2d 537, (Miss.).
We therefore respectfully submit to the court that the appellants have wholly failed to make out their case in any phase of it. That the record is clear and convincing that there were no misrepresentations whatsoever in regard to this trade. That to the contrary, Mr. Charping dealt fairly and squarely with the appellants; he opened his lands to them for their inspection and examination at will; he gave them all the information he was able to give them with reference to the lands; he steadfastly refused to make any assurances or guarantees of open or cultivatable acreage, either as a whole, or as being situated on either side of the Mississippi River Levee. That Complainants, by their own investigation, determined, and were well aware of the fact, that there was actually no levee protection to these lands due to the termination of the levee just below Brunswick, a short distance south of the property purchased by them from appellee; that the property was all subject to back-water; that the backwater level on this property was maintained during high stages of water at almost the identical level of the river itself; that appellants' investigation was thorough in determining the kind, character, quality and quantity of the lands purchased; and was equally thorough in determining the value to them of this property; that they were completely satisfied with it; and that after heated arguments; being unable to secure any guarantees from Mr. Charping, they finally traded with him on a gross, or bulk sale, basis, paying him a lump sum figure for his entire properties, as a whole, as stated in the detailed contract executed by the parties.
We further respectfully submit, that even if it could be said, by any stretch of the imagination, that Mr. Charping did say that there was any particular quantity of cultivatable acreage on the protected side of the levee, the appellants have demonstrated that they did not rely upon any such statements, but made their own investigation, relied upon their own knowledge of farm land, astute business ability, and valuations determined by them, and as set out in the cases cited, supra, in this brief, are not now entitled to claim misrepresentation on the part of the appellee, but are bound by their own investigation so made.
It is patent to us, however, that no such representations were made, as charged in the bill of complaint; and that the contract, as written, embodied all of the agreements of these parties, leaving nothing unsaid, or understood, or relied upon, outside of the written instrument as finally approved by all parties.
We submit that the judgment of the court below should be affirmed with interest and damages allowable in this court on the appeal.
Appellants brought suit against appellee for the recovery of damages for fraud and deceit in connection with representations alleged to have been made by appellee in a sale to appellants of a large tract of land situated in Issaquena County. The suit also involved certain equitable rights and remedies claimed by appellants which gave chancery jurisdiction. The Chancellor sustained a general demurrer to the bill of complaint and upon a former appeal his action was reversed and the cause remanded. Reed et al. v. Charping, 201 Miss. 477, 29 So.2d 271.
Upon remand to the lower court an amendment was filed to the original bill of complaint and the cause was tried upon the original bill and amendment, answer thereto, and cross-bill of appellee against appellants, amended cross-bill, answers thereto, and oral and documentary evidence. A decree was entered finally dismissing the original and amended bills, and sustaining the cross-bill as to the balance alleged to be due on the purchase price of the land, and also granting a recovery over and above that amount in connection with certain other transactions between the parties regarding personal property, from which action this appeal is prosecuted.
We approach a decision in this case in full recognition of the well-established rule in this state that (Hn 1) a decree of a chancellor will not be reversed unless it is manifestly erroneous, and, while it is our duty to affirm if there is sufficient substantial evidence to support a chancellor's finding, it is equally our duty to reverse in the absence of such support where the overwhelming proof stands as a barrier against the affirmance of his decree.
The greater portion of the relief sought by appellants is for the recovery of damages for fraud and deceit founded upon the charge that, as a basis to induce them to purchase the lands in question from appellee, he represented to them as a fact that there were not less than five thousand acres of cultivatable land within the protection of the levee of the Mississippi River, that appellants relied upon this representation and were deceived thereby, and as a consequence thereof were induced to purchase the lands; that the said representation was false and untrue and so known to the appellee; that in fact there were only about 3500 cultivatable acres within the protection of the levee, but this was not discovered by appellants until after they had paid the greater portion of the purchase price and had expended many thousands of dollars in making improvements thereon such as the construction of a new cotton gin, repair and renovation of tenant houses, and the construction of new tenant houses, making a suit for rescission impractical.
The governing legal principles are well settled by decisions of this Court. In Vincent v. Corbitt, 94 Miss. 46, 47 So. 641, 21 L.R.A., N.S., 85, it was held that a statement by an owner of a tract of land that a designated number of acres thereof was cleared is an averment of a fact and not the expression of an opinion, and, if false, an action of deceit can be predicated thereon. Numerous authorities are cited in the opinion to sustain the holding therein. That holding was reaffirmed in McNeer Dodd v. Norfleet, 113 Miss. 611, 74 So. 577, Ann. Cas. 1918E, 436, where additional authorities on the subject are collated.
In Nash Mississippi Valley Motor Co. v. Childress, 156 Miss. 157, 163, 125 So. 708, 709, this Court said: (Hn 2) "A purchaser has a right to rely upon the representations of a seller as to facts within the latter's knowledge, and the seller cannot escape responsibility by showing that the purchaser upon inquiry, might have ascertained that such representations were not true. (Hn 3) Contributory negligence is not a defense to an action based on fraud. If (Hn 4) a false statement is made by one who may be fairly assumed to know what he is talking about, it may be accepted as true, without question and without inquiry, although the means of correct information are in reach." Numerous authorities are cited to sustain this announcement of these principles, and they were applied in the more recent case of H.D. Sojourner Co. v. Joseph, 186 Miss. 755, 191 So. 418.
(Hn 5) The record here shows that appellee listed his lands with a real estate agent for sale. This agent contacted the appellants as prospective purchasers and represented to them that the entire tract, consisting of fifteen plantations, contained 5936 acres in cultivation, protected by the levee, and about 8438 acres of other land. This representation is not denied by the agent. He testified that whatever he told appellants as to the acreage was information given him by appellee. In subsequent conferences leading up to a final closing of the deal by written contract it is shown by the overwhelming evidence that appellee represented that he had between 5500 and 6000 cultivatable acres within the protection of the levee. A price was discussed and tentatively agreed upon based upon a guarantee of 5500 cultivatable protected acres, with a provision for reduction in price at the rate of $50.00 per acre for any shortage in amount, but appellee demurred to such a guarantee with provision for reduction, and in the final conference when the deal was concluded, he represented that he knew he had as much as 5000 cultivatable acres so protected and he reduced his price $25,000.00, being a five-hundred-acre reduction at a value of $50.00 per acre, and, upon such reduction in price and representation as to acreage, the deal was closed. There is no question from the record here that the amount of protected cultivatable acreage was the moving factor in the deal, and that appellants relied upon appellee's said representation. This was established by the testimony of disinterested witnesses who are men of high standing and unquestioned veracity. While appellee made a gesture at denial of his representations, he contradicted himself on numerous points in his testimony, there being a substantial variance between what he said when unexpectedly called as an adverse witness for cross-examination and what he later said on direct examination as a witness in his own behalf. He offered no proof as to the amount of cultivatable protected acreage in the deal and maintained that he had no idea as to the quantity thereof, yet he had owned and cultivated the land for many years, had no doubt participated in government benefits on a basis of cultivatable acreage, and was a member of the board of supervisors of his county charged not only with the duty of rendering his own cultivatable acreage for assessment but also with the duty of examining, equalizing and approving the land assessment rolls and vouching for their accuracy. The decree denying relief on this feature of the case is based solely upon the unsupported testimony of appellee, which, as we have pointed out, is not only unsubstantial in view of his conflicting statements, but is overwhelmingly disputed by other witnesses, both interested and disinterested. We are, therefore, of the unanimous opinion that the decree of the lower court denying recovery of damages for the misrepresentation in the amount of cultivatable protected acreage is manifestly wrong and must be reversed.
(Hn 6) We are unable to render a judgment here for the amount of appellants' damages on the foregoing issue for the reason that we cannot calculate the amount thereof with sufficient certainty. The appellants offered two witnesses, both engineers with the United States Corps of Engineers, War Department, assigned to the Mississippi River area at Vicksburg. They compiled and offered in evidence a composite map of the lands in question from aerial photographs taken from the official files of the United States Engineers Office at Vicksburg, and one of these engineers calculated the cultivatable acreage within the protection of the levee to be 3529.6 acres, while the other calculated it to be 3569.1 acres. Appellee's objection to these maps was sustained by the trial court, it having been shown by cross-examination that there is frequently a slight distortion in aerial photographs which may make a variance of about five per cent in accuracy unless they are "ground-checked," and these witnesses were unable to testify positively that the photographs had been so checked. The appellee offered no evidence whatever as to the acreage involved, but it is clearly apparent from the record that there is a material and substantial shortage. Therefore, the cause is remanded to the trial court for the taking of further testimony upon the sole question as to the amount of cultivatable land within the protection of the levee, and for a determination of the amount of damages which appellants have sustained as a consequence of the misrepresentation aforesaid.
(Hn 7) The appellants also claimed damages for misrepresentation by appellee as to the amount of and which is subject to seep water coming through the levee when the river is at a high stage, and they offered some evidence that about 580 acres were subject to such damage; on the contrary, the appellee testified, and was supported by disinterested people residing upon adjacent lands, that there is no seep water through the levee at this place. The evidence on this feature amply supports the decree of the chancellor in denying damages because of the alleged seep water.
The appellants also claimed $6,000 damages because of the loss of an oat crop alleged to have been damaged by seep water. Their evidence to support this claim was weak, and we think was overwhelmed by the evidence of other parties who lived on adjacent lands and observed the oat crop and testified that, while the oats did not profitably mature, this was because of backwater from Steele's Bayou and because of premature grazing of cattle thereon for three or four months. It was furthermore shown by government records of the river gauge that, during the period of cultivation and maturity of the oat crop, the river did not at any time rise above the level of the land in question, which negatives the contention that the oat crop was damaged by the seepage of water through the levee; and we find no error in the action of the chancellor in denying this claim.
The appellants also claimed damages for an alleged breach of an obligation on the part of appellee to locate for them the corners and lines of the lands in question. (Hn 8) Specifically, they claim that the appellee could not comply with this obligation without having the land surveyed, which has not been done, and that the cost of such a survey would be around $6,300.00. Appellee and his plantation manager, who after the sale remained for several months in the employment of appellants, testified that the manager was familiar with all the lines and corners and pointed them out to appellants. This was not substantially disputed. The contract of sale did not obligate appellee to have the lands surveyed, and we are of the opinion that what he did, through his manager, was a sufficient compliance with his obligation, and that the chancellor was correct in denying recovery on this item.
The appellants claim lastly that the chancellor erred in his findings with reference to numerous items of personal property and his award of damages in favor of appellee, on the cross-bill, in the amount of $3698.80. After a careful review of all the evidence pertaining to these items we find that the chancellor was correct on a large portion of the award of damages, and we cannot say with assurance that he was manifestly wrong on the remainder.
The decree is therefore affirmed in part, and is reversed on the item of damages for misrepresentation and deceit as to the amount of cultivatable land within the protection of the levee, and is remanded to the trial court for a proper award of damages thereon.
Affirmed in part, and in part reversed and remanded.
Montgomery, J., took no part in the consideration and decision of this case.