Baker v. Meenach
| Decision Date | 25 March 1949 |
| Docket Number | 17765. |
| Citation | 84 N.E.2d 719,119 Ind.App. 154 |
| Parties | BAKER et al. v. MEENACH et al. |
| Court | Indiana Appellate Court |
Appeal from Franklin Circuit Court; Kenneth E. Copes, Judge. [Copyrighted Material Omitted]
O. W. Hubbard and Roscoe C. O'Byrne, both of Brookville, and Owen S. Boling, of Indianapolis, for appellants.
Virgil J. McCarty and Charles R. Baker, both of Brookville, and Clinton H. Givan, of Indianapolis, for appellees.
The appellees, Simon Fitch Meenach and Jewell Meenach, sued the appellants to set aside a certain deed to 160 acres of land including improvements thereon, consisting of two dwelling houses located in Franklin County, State of Indiana and a bill of sale to personal property consisting of livestock and poultry executed by the appellees for the exchange of coal rights in and under a 60 acre tract of land located in Jackson County, State of Kentucky, based on fraud.
The issues were joined on a complaint in a single paragraph and answer of special denial, a cross complaint in two paragraphs and answer of special denials thereto. A trial by jury resulted in a verdict in favor of the appellees. The assignment of errors presented to this court questions the action of the trial court in overruling appellants' motion for a new trial.
The grounds of appellants' motion for a new trial raises the following questions:
1. Was there sufficient evidence to establish that the appellants, or either of them, were guilty of actionable fraud?
2. Did the plaintiffs make a timely repudiation of the deed and bill of sale and seek rescission thereof within a reasonable time after they discovered the fraud?
3. The question as to whether the court erred in overruling the motion to peremptorily instruct the jury at the end of the plaintiffs' case and at the end of the defendants' case.
4. That the appellees have failed to return or offer to return everything of value received in the transaction so that each party will be in statu quo.
The allegations of fraud relied upon in Rhetorical Paragraph IV of appellees complaint were as follows:
'That on said 17th day of October, 1945, and for several days prior thereto, for the purpose of cheating and defrauding plaintiffs out of their said above described real estate * * *.'
'And that said defendant, Nathon W. Baker then and there falsely and fraudulently represented to the plaintiffs herein that there were three workable veins of coal in and under said above described real estate, two of which said veins were 32 inches in thickness and one vein of 54 inches and that the said coal rights were worth in excess of $6000 * * *.'
Rhetorical Paragraph VI of appellees complaint is as follows:
'Plaintiffs herein say and allege that they were not familiar with coal lands and were inexperienced in coal mining; that relying upon said statements and representations so made by the defendants, and believing them to be true, they did exchange their said above described real estate in Franklin County, in the State of Indiana for the coal rights so owned by the defendants in the said State of Kentucky, and they did on the 17th day of October, 1945, convey by warranty deed the said above described real estate to the defendant, Nathon W. Baker, and that defendants did on said day deliver to plaintiffs the coal rights in and under said real estate in the said State of Kentucky, and that said plaintiffs also delivered to defendants herein a bill of sale for the crops and chattel property and implements on their said real estate; and the value of fourteen hundred dollars ($1400) and said plaintiffs were induced to make such exchange by reasons of said false representations of said defendants.'
Fraud will not be presumed but must be proved by the party who alleges it. Edwards v. Hudson, 1938, 214 Ind. 120, 14 N.E.2d 705; Adams v. Laugel, 1896, 144 Ind. 608, 42 N.E. 1017; Hunt v. Elliott, 1881, 80 Ind. 245, 41 Am.Rep. 794; Pinnell v. Stringer, 1877, 59 Ind. 555.
It is not necessary, however, that fraud be proved by direct or positive evidence, but it will be sufficient if facts and circumstances be proved from which it can fairly be inferred. Edwards v. Hudson, supra; Levi v. Kraminer, 1891, 2 Ind.App. 594, 28 N.E. 1028; Aultman & Taylor Machinery Co. v. Shell, 1916, 61 Ind.App. 19, 111 N.E. 445.
The essential elements of actionable fraud or misrepresentations, are falsity, scienter, deception and injury. Edwards v. Hudson, supra; Rochester Bridge Co. v. McNeill, 1919, 188 Ind. 432, 122 N.E. 662.
Measured by these standards, we are called upon to say whether the evidence as disclosed by the record is sufficient to sustain the verdict of the jury and the ruling of the lower court on the motion for a new trial.
In that consideration, we are not concerned with the conflicting evidence or with the weight thereof, but only in determining whether there is an entire absence of proof of any of the facts necessary to be established.
We are of the opinion that the record discloses evidence from which the jury could have found or reasonably inferred the following facts.
That Nathon W. Baker, the appellant, set out with a carefully contrived scheme to cheat the appellee Meenach and sell him coal rights on land where appellant Baker did not believe coal veins in commercial quantities existed; that appellee Meenach had been a farm laborer and had but little education and had his wife take care of his correspondence; that he finally purchased a farm of 160 acres in Franklin County and was earning a living by farming and hauling his produce to Sand Gap, Kentucky and bringing back loads of coal; and that he had no experience in the coal mining business and that Nathon W. Baker, the appellant, was an educated man and had attended Berea College and had lived for many years in the community of Sand Gap, Kentucky; that he was well informed about coal land in that community, and was engaged in the coal mining business at the time; that while Meenach was unloading hay in Sand Gap, Kentucky, the appellant Baker approached Meenach, the appellee, and told him that 'if you are looking for coal I have got the best coal in Jackson County and I mean big coal * * *'; that Baker had a man by the name of Johnson take Meenach to see the tract of land, and when Johnson returned with Meenach, Baker took Meenach to the 60 acre tract of land and told Meenach that there were two veins of coal 30 inches and one vein 4 1/2 feet; that Baker stated he had had it opened up and showed Meenach the hole on said 60 acre tract where he represented that the 4 1/2 foot vein of coal was located by the prospecter in 1937, and stated that the briers and bushes were too thick to get in there and make further inspection; that Baker placed a value of $6000 on his coal rights in said 60 acre tract and offered to trade his coal rights for Meenach's 160 acre farm in Franklin County and Meenach's cattle, hogs and other personal property listed in the bill of sale; that Baker further represented to Meenach that he was selling out on account of his wife's health and was going to Florida; that Baker and Johnson stayed with Meenach at all times until the trade was finally consummated in Indiana, after Baker had made representations to Meenach's wife that there were three veins in and under said 60 acre tract of land in Franklin County and that two veins were 32 inches thick and one vein 54 inches thick and that after these representations were again made to Meenach's wife, the trade was finally consummated at the town of Harrison on the Indiana and Ohio line.
The evidence further shows that Baker only paid $10 per acre for said 60 acre tract of land when he purchased same a short time before he had it prospected. Baker had a man by the name of Oscar Brockman to prospect said land for coal in 1937 and Brockman testified that he prospected said tract of land and opened a hole and only found a vein of 24 inches of coal and had reported this information to the appellant, Nathon W. Baker in 1937 and further reported to him that he did not find any commercial coal. The evidence shows that there was no commercial coal in and under said tract of land.
The evidence disclosed that Meenach asked Baker to trade back the property in controversy in September 1936 and the evidence further shows that after Meenach had talked to Brockman and found out from Brockman that there was no commercial coal under said tract and that he had prospected it in 1937, the appellees within about two weeks brought this action and at the same time filed a deed with the Clerk of the Franklin Circuit Court conveying said 60 acre tract of coal rights in Kentucky back to Nathon W. Baker and wife Cora Baker; that the transaction of exchange resulted in injury and damage to the appellees in that they parted with a 160 acre farm and $1400 worth of personal property for the coal rights in Kentucky which was worthless as mining property.
The evidence further shows that sometime in January or the early part of February 1946, the appellants and the appellees entered into an oral agreement leasing the farm in Franklin County, Indiana to the appellees for farm purposes.
The evidence further shows that there were logs cut from the farm in Franklin County, Indiana and sawed into lumber and that a couple of rooms were started but not finished on the house on said farm. There is no evidence as to the amount of money, if any, that was expended by Baker on said house except a bill for sawing lumber in the sum of $36.
That the evidence shows that Baker did some work on said house and that Meenach cut the trees and brought them back in the form of lumber and also worked on the house. Baker had received several large sums of money for crops...
To continue reading
Request your trial