Barnard v. Roane Iron Co.

• Decision Date: 12 October 1886
• Parties: BARNARD v. ROANE IRON Co. (Two Cases.) BARNARD and others, Heirs, etc., v. SAME.
• Court: Tennessee Supreme Court

2 S.W. 21

85 Tenn. 139

BARNARD v. ROANE IRON Co. (Two Cases.)

BARNARD and others, Heirs, etc., v. SAME.

Supreme Court of Tennessee.

October 12, 1886

Appeal from chancery court, Roane county.

Action for rescission of contracts and cancellation of deeds. Judgment for plaintiffs. Defendant appeals.

L. A Gratz, for complainants. Sevier & Welcker, for respondent.

FOLKES,J

The complainants and their ancestor, Jonathan Barnard, were owners of certain lands in Roane county. On the fourteenth day of June, 1872, they executed the following instrument:

"This agreement, made and entered into this the fourteenth day of June, 1872, is for the following effect and purpose to-wit: That whereas, we, the undersigned parties, being seized and possessed of certain lands, lying and being in the Ninth and Tenth civil districts of Roane county, on the waters of Riley creek, upon which iron ore is known to exist, and being desirous that the same may be developed and worked, do hereby agree to sell to the Roane Iron Co. all the iron ore, with all the rights, including timber for mining purposes only, necessary to mine and convey the same from off said lands, on the following conditions: The lands are to be surveyed at the expense of the Roane Iron Company, and at their option, within six months, and the number of acres of ore land marked out on said survey, upon each of said lands; and we further agree to deed and convey, upon the payment of the purchase money, from ourselves, our heirs or assigns, to the Roane Iron Company their heirs or assigns, all the ore in land marked out in said survey, for the sum and at the rate of two and fifty one-hundredths ($2.50) dollars per acre.

"Witness our hands and seals this fourteenth day of June, 1872.

[Signed] "JOHN A. BARNARD. [Seal.]

"S. T. BLAIR.

"J. M. BARNARD.

"R. T. PRICE.

"WM. DEATHERIDGE. his

"MARTIN M. X HICKS. mark.

"F. PICKLE.

"JONATHAN BARNARD.

"Witnesses:

"W. E. MCELEVEE.

"JOHN BLAIR.

"J. T. WILDER."

A few moments thereafter, on the same day, for reasons that will appear later on, Wilder, as the agent of defendant company, executed the following agreement:

"Know all men that I, J. T. Wilder, superintendent of the Roane Iron Company, having this day contracted from certain parties named in an agreement here referred to certain ore in lands on the waters of Riley creek, and I do hereby agree to test or try a part or portion of the same, at some convenient point or place therein, before the expiration of the year 1873. And I do further agree that when said test shall have been made, if the Roane Iron Company decide that they cannot or will not mine or use the same, that the company aforesaid shall, upon the demand of the parties aforesaid, and the payment of the purchase money, reconvey to the original parties making such demand all the rights, immunities, or title conveyed by the parties aforesaid to the Roane Iron Company this June 14, 1873.

[Signed] "ROANE IRON CO.

"By J. T. WILDER, Supt.

"Witness: W. E. MCELEVEE."

The date is admitted to be a clerical error, and it is agreed in the pleadings that it should be 1872.

It is not controverted that these two papers were made at the same time and place, and the latter left with John Blair (at whose house the meeting between Wilder and the signers of the contract of sale took place) for safekeeping, he being a neighbor of complainants. On the seventh December, 1872, the complainants' testator, Jonathan Barnard, in pursuance of the agreement to convey, executed a conveyance to the Roane Iron Company of the mineral interest in 46 acres, at $2.50 per acre, acknowledging the receipt of the consideration of $115. On the same day complainant J. M. Barnard, in consideration of $22.57, and complainants John A. Barnard and wife, in consideration of $47.58, conveyed to the defendant company the iron ore on their lands embraced in certain designated boundaries. On the seventeenth day of April, 1883, the attorney for the executors and heirs at law of Jonathan Barnard made a tender of the purchase money, with interest, to the defendant company, through its president, and demanded a reconveyance of the iron-ore interests. The tender and demand were made orally, and accompanied with a written demand, as follows:

" To the Roane Iron Co.: Demand is hereby made upon you to reconvey to us the iron-ore interest deeded to you by Jonathan Barnard and Sarah Barnard, by an instrument in writing bearing date December 7, 1872, by reason of your failure to test or try a portion of said ore, in accordance with the obligation signed by you on the fourteenth day of June, 1873, and for your failure to mine or use the same; and also for your failure to carry out the other, further, and different conditions agreed to by you; and I hereby tender to you the sum of $115, principal, and the further sum of $71.85, being the interest thereon, the consideration paid by you to me for said ore interest.

" Kingston, Tennessee, April 17, 1883."

--Signed in the name of the heirs of Jonathan Barnard, by E. E. Young, attorney.

A substantially similar demand and tender was made at the same time, separately, for John A. Barnard and J. M. Barnard, which tender and demand being refused by the president of the company, these three bills were filed on the nineteenth of April, 1883.

In the bill filed by the executors and heirs of Jonathan Barnard it is alleged that he died in 1875; "that at the time the deed was made he was a very old man, past 83 years of age, feeble in body; and while not deprived of mental faculties, yet they were considerably impaired and weakened, while defendant's agent and officer was an active, vigorous, and middle-aged man."

With this exception, the charges and allegations of the three bills are substantially the same. They charge that the deeds were procured by misrepresentation and fraud, in this: that the agent of defendant who examined the lands for ore "was an educated man, well understanding the indication, outcroppings, and value of iron ore," while the complainants were plain farmers, understanding nothing about mineralogy; that said agent represented that the ore in complainants' land was in a perpendicular vein, and consequently of little, or, at any rate, of greatly less value than if found in a horizontal vein; "that such representations were false, the ore being of great value, worth thousands upon thousands of dollars." The bill further charges that, in addition to the promises contained in the written agreement signed by Wilder for the company, of date June 14, 1873, (1872,) there was yet another condition not expressed therein, which was an agreement to construct, within a period of three years, a line of railroad connecting the lands to be deeded to it with the Tennessee river, where the cars were to be transported by boat to Rockwood landing, thence to be run, upon the track of defendant's railroad, to Rockwood; that, when completed, this railroad should "carry free of charge" to complainants, all garden products and small articles usually shipped from a farm to the markets, "and heavy grain for a very moderate charge."

The bill then charges, in very glowing language, the transcendent beauties of the picture painted by Wilder of the marvelous growth and development of the country that would follow the introduction of the railroad; and adds: This "operated upon the minds of the parties agreeing to convey with greater force than any other consideration, and formed the chief inducement for entering into the agreement." It is charged that the promise to build the rail-road was to have been incorporated in the agreement signed by Wilder, and that complainant supposed, until a short time before filing the bills, that it was inserted therein. They say that "ten years have elapsed since defendant bound itself to test and try the ore,--determine whether or not it will work the ore,--and seven years have gone by since the railroad was to have been finished, yet nothing whatever has been done to carry out any of the undertakings; that they are forced to the conclusion, and they charge, that the representations of building a railroad and developing the country were false,...