Alexander v. Meek

• Decision Date: 07 May 1923
• Docket Number: 23180
• Citation: 96 So. 101,132 Miss. 298
• Court: Mississippi Supreme Court
• Parties: ALEXANDER et al. v. MEEK et al

96 So. 101

132 Miss. 298

ALEXANDER et al. v. MEEK et al

No. 23180

Supreme Court of Mississippi

May 7, 1923

VENDOR AND PUBCHASER. Purchaser held entitled to rescission of land contract for false representations of vendor.

Where the agent of the vendor of property makes representations of fact as to the boundary lines, and the vendee relies upon these representations, which constitute one of the inducing causes of the consummation of the sale, and the representations are false in a material respect, and the falsity of which was not discoverable by an inspection of the land, and the purchaser was actually misled by these representations, held, that the purchaser is entitled to a rescission and cancellation of the contract.

HON. E N. THOMAS, Chancellor.

APPEAL from chancery court of Humphreys county, HON. E. N. THOMAS Chancellor.

Suit by J. A. Alexander and others against G. W. Meek and others. From a decree dismissing the bill, plaintiffs appeal. Reversed and remanded.

Cause reversed and remanded.

J. B. Harris and Moody & Williams, for appellants.

The rule is thus laid down in 1 Ruling Case Law, page 319 Section 6: "Whatever a man has a legal right to do he may do with impunity, regardless of motive, and if in exercising his legal right in a legal way damage results to another, no cause of action arises against him because of a bad motive in exercising the right. It has been said that malicious motives make a bad case worse but they cannot make that wrong which in its own essence is lawful.

The rule is thus laid down in 1 Cyc. page 668, in Note on page 669: "Where there is a legal right to do a certain act the motive which induces the exercise of the right is of no importance."

I think the rule is too well established to require the citation of authorities. It is not admitted; on the contrary, it is denied positively that the act of the complainants in seeking to rescind the contract arose from the fact that the land had decreased greatly in value. The rule governing this case, I think, is stated clearly in the case of Allen v Luckett, 94 Miss. 873. This rule is based upon the rule as laid down in 2 Pomeroy's Equity Jurisprudence, paragraphs 852-853. Bingham v. Madison, 103 Tenn. 358, 47 L. R. A. 267.

At all events, I think it would be trifling with the court to undertake to argue that Dr. Alexander was not relying upon the representations made by the negro. He made none. There can be no possible question in this case but that Dr. Alexander was relying entirely upon the representations of Garnett, the agent of Meek. In other words, for the purposes of this case, Garnett was Meek himself making the representations in regard to the land.

But we insist that it makes no difference, here, for the purposes of this aspect of the case, whether Garnett knowingly misled the complainants in regard to the boundaries of the land, and as to the amount of the land which was under the lake. His representations were false, and the complainants relied upon them; this is the essence. 2 Pomeroy's Equity Jurisprudence (4 Ed.), page 1714, section 852; 9 Corpus Juris, page 1166; 21 Corpus Juris at page 88; Fraser v. Bank, 101 Ark. 140; 2 Pomeroy's 870; Fleisher v. Magee, 111 Ark. 330.

In other words, this is not a case for reformation, but for rescission. I invite the court's attention to the case of Green v. Stone, 54 N.J.Eq. 387; Wirschingburg v. Grand Lodge, 67 N.J.Eq. 711, 56 A. 613; Deuris v. Pierce, 103 N.E. 296; See, also, extensive note to Green v. Stone, 55 Am. St. Rep. 577; Sleinmeyer v. Schoffer, 117 A. S. R. 226, note pp. 233, 242; Belknap v. Sealey, 67 Am. Dec. 120; 2 Pomeroy, secs. 856, 902, sub-division 3, on page 392. Prompt disaffirmance was necessary after they had obtained knowledge of the facts. 2 Pomeroy, 297. But there could be no waiver or acquiescence by mere lapse of time in discovering the facts. 2 Pomeroy, 817.

Before closing the brief I desire to say that I must not be taken as conceding in any way, that misrepresentations in this case were not knowingly made, but I have endeavored to present the case in the most favorable aspect for the appellee, and to show the court that, admitting for the purpose of this discussion that the misrepresentations were innocently made, still the decree must be reversed.

Moody & Williams, for appellants.

The facts disclosed by the records in this case present three views of the rights of the appellants as against the appellees, the acceptance of any one of which necessitates a reversal of the decree appealed from. First: The identity of the land bargained for is different from that actually conveyed. Second: The representations made by Mr. Garnett, the agent of the appellees, that the public road was the southern boundary of the land to be conveyed, on which appellants relied, were false. Third: The representations made by G. W. Meek, one of the appellees, that there were not exceeding three acres of the land to be conveyed, in the lake, on which appellants relied, were likewise false.

First. The representations made by G. W. Meek, one of the appellees, to the effect that there were not exceeding three acres of the land to be conveyed, in the lake, on which the appellants relied, were false. It is a rule of presumption that ordinarily a witness who testifies to an affirmative, is to be preferred to one who testifies to a negative, because he who testifies to a negative may have forgotten."

We submit that this is a sound exposition of a recognized rule of evidence, of frequent application, and that the reason for such rule dispenses with immediate or further comment. Stitt v. Huidekoper, 24 L.Ed. 644-647.

On the argument of this case in the lower court the attorney for the appellees, without directing attention to the facts and legal principles therein stated, and without comment, read to the court the following part of the opinion of this court in Johnson v. Jones, 13 S. & M. 590: "This is one of the numerous cases that have grown out of the rash and reckless spirit of speculation, and the heedless contracting of engagements as surety, that prevailed in the community some years ago. When the bubble has bursted, an appeal is made to the law, to relieve men from the consequences of their own temerity. A more apt illustration of the whole process could scarcely be found than is exhibited by this record."

Why this extract was read, unless to insinuate that the appellants in this case should he thus stigmatized, we are utterly unable to conceive. True it is that this suit was instituted following the financial collapse of 1920, yet there is no reason to infer that because one act follows another, the latter is a result of the former. Certainly it will be conceded that "post hoc, ergo propter hoc is not sound reasoning" either in morals or in law."

Second. The identity of the land bargained for is different from that actually conveyed. We assert as a fact, disclosed by the record in this case, as to which there is absolutely no conflict whatever in the testimony, the following: "The land in controversy was, by the appellees, placed in the hands of Mr. Garnett, as their agent, for sale. Mr. Garnett showed Dr. Alexander, one of the appellants, the land which he desired to sell him. The land which he showed the doctor, and which he desired to sell the appellants, was all north of the public road except a small tract in the southeast corner, in a pasture, containing four or five acres. With or without the conversation between Mr. Johnson and Mr. Meek eliminated, there is absolutely nothing whatever in the record to indicate that Mr. Garnett showed Dr. Alexander any part of the land, which he desired to sell, as being in the lake, nor anything to indicate that appellants were aware of that fact. The description of the land was not, by Mr. Garnett, given to Dr. Alexander when he took him down there to show him the land. The description was later, by the former given to Mr. Johnson, at which time he represented that the road was the southern boundary."

This land, thus shown Dr. Alexander, and which the agent desired to sell to appellants, the record discloses as a fact, is not the land conveyed to them. Certainly it will be conceded that the land, actually conveyed, contains from thirty-five to forty-five acres in the lake, absolutely worthless, all of which is sound of said public road. No argument is required to enforce the statement that he was entitled to rescind. Selby v. Matson, 14 L. R. A. (N. S.) 1214.

Certainly, it must be conceded, that the appellants had a right to have the thing, the particular land for which they traded, conveyed to them. The law of the case, as to this particular point, has been accurately stated by this court and applied to facts substantially the same as those appearing in this record in the recent case of Brown et al. v. Coker et al., 29 So. 585. See also as to this point, 39 Cyc. p. 1267 (IV); 9 Corpus Juris, p. 1166, sec. 17.

In concluding our argument as to this feature of the case, we direct attention to the opinion of this court in Allen v. Luckett, 94 Miss. 868. 2 Pomeroy's Equity Jurisprudence, 852, 253; Bingham v. Madison, 103 Tenn. 358, 52 S.W. 1074, 47 L. R. A. 267.

Third. The representations made by Mr. Garnett, the agent of the appellees, that the public road was the southern boundary of the land to be conveyed, on which appellants relied, were false.

The Law. Representations of fact, by Garnett as agent, binding on appellees. Representations made by an agent, at the time he is contracting for his principal, are binding on the principal as much so as if such representations were made by the principal himself. Wimple v. Patterson, 117 S.W 1034-5; Lover v. Robinson, 54 Tex. 510; Rhoda v. Annis, 75 Me. 17, 46 Am. Rep....