Birch-Brook, Inc. v. Ragland, BIRCH-BROO
| Decision Date | 09 October 1972 |
| Docket Number | INC,No. 5--6010,BIRCH-BROO,5--6010 |
| Citation | 485 S.W.2d 225,253 Ark. 161 |
| Parties | , Trustee, Appellant, v. William T. RAGLAND, Jr., et al., and Thomas Engineering Company, Appellees. |
| Court | Arkansas Supreme Court |
Darrell D. Dover, and House, Holmes & Jewell, Little Rock, for appellant.
Stubblefield & Matthews, Chowning, Mitchell, Hamilton & Chowning, Little Rock, for appellees.
The pertinent facts in this case are not in dispute. In July, 1965, appellant, Birch-Brook, Inc., Trustee, an Arkansas Corporation, purchased the parcel of land in Pulaski County which is involved in this litigation (referred to in the record as 'Tract B'). Appellees are heirs and devisees of the Miller and Ragland families. The sale price was $310,000, payable $50,000 in cash and $260,000 over an eight year period according to the terms of a promissory note secured by a vendor's lien on the property. It is undisputed that up to the time of the delivery of the deed, the making of the down payment, and the delivery of the aforementioned note, both appellant and appellees were under the impression that Tract B contained 89.293 acres. This belief was occasioned by a survey prepared by Thomas Engineering Co., Inc., which bore a notation that the tract contained the above mentioned acreage. It is also undisputed that this figure was in error and that the tract of land actually contained only 81.55 acres, being 7.743 acres less than the figure used in the survey. Nearly five years after the delivery of the deed, appellant, a real estate firm, and trustee and agent for a group of real estate investors and developers, instituted suit in the Pulaski Chancery Court asserting the shortage of acreage and seeking reformation of the deed and note so as to allow appellant an abatement in the agreed purchase price. After the filing of answers by the appellees, who also cross-complained against Thomas Engineering Company seeking judgment over in favor of appellees in case appellant should recover any sum against them, 1 and the amending of various pleadings, the case proceeded to trial and at the conclusion thereof, the court rendered its opinion denying relief to appellant and dismissing its complaint. Because of this finding, there was no necessity to rule on the statute of limitations issue raised by Thomas. From the decree so entered, appellant brings this appeal. For reversal, it is first asserted that the trial court erred in holding that the transaction was a sale 'in gross' and not a sale by the acre. It is then contended that the mutual mistake as to quantity was so great as to entitle appellant to reformation and abatement as a matter of law and the lower court erred in holding to the contrary. We proceed to a discussion of these points.
Mr. Byron R. Morse, a Vice President of Birch-Brook, Inc., testified that the company learned that the tract of land here in controversy was for sale in the fall of 1964. Company officials contacted Mr. Jack Farris of Little Rock, knowing that he generally represented the interests of the Miller-Ragland estate. The company was not aware of the acreage of the property but learned that it had not been approved for sale at any particular figure. Morse stated that Farris said that though no definite figure could be given, he would recommend to the Raglands the sale at somewhere around $3,000 to $4,000 an acre. Mr. Morse and Mr. Rector, of Rector, Phillips, Morse, Inc., had walked over the property and knew it fronted on Highway 70. The witness testified that they considered a fair market value to be $10,000 per acre for 10 acres fronting on the highway and about $3,000 per acre for the remainder of the tract; however, when first contacting Farris they were only interested in the 10 acres as shopping center property. Subsequently, they were furnished a copy of the survey and reached the conclusion that the total value was about $340,000. Morse said that it then became a proposition of 'horse trading' for the best price obtainable; that appellant initially offered $150,000 for the entire tract, counter offer by Farris for $335,000, and that finally the $310,000 sale price was agreed upon, the different prices resulting from various circumstances such as who would pay for sewers, etc. He said that at all times they had access to the survey, and had a copy of it prior to making an offer. The survey described the property by metes and bounds and was correct, though it is agreed that the figure of 89.293 acres for tract 'B' appearing near the upper left hand corner was incorrect, and that the property was actually short in the amount of 7.74 acres. The metes and bounds description contained in both the deed and note concluded with the words 'containing 89.293 acres, more or less.'
Morse testified that the error was first discovered in the fall of 1969. The testimony of Jack Farris was in accord with that of Morse, both stating that in reaching the total price they discussed the total number of acres involved (as shown by the survey) and he said there were back and forth offers and counter-offers before the sale price was agreed upon. Arthur H. Thomas, a registered professional engineer, testified that his firm made the survey. He said that it was first delivered in July, 1964, and a copy transmitted to Mr. Farris in August, 1964. One of the employees of the company made the error, Thomas personally having nothing to do with making that computation. The witness said the error was simply in the computation of acreage, and that the dimensions and bearings shown on the survey were correct, and there is no dispute as to this fact. He said that the error was first discovered by him in October, 1969, when he received a letter from Farris asking him to check the survey.
William Trent Ragland, Jr., a resident of Raleigh, North Carolina, stated that he had only seen the tract of land one time in the past twenty years. The witness testified that in 1962 members of the family decided they would like to dispose of their property and considered that the first step was to have a map prepared in order to determine what they owned; Jack Farris, who had handled the family's real estate business in Arkansas for many years, was contacted. Mr. Ragland never had any direct communication with the buyer of the lands and he said that Mr. Farris never communicated any offer to buy the land in question at the rate of so many dollars per acre for so many acres. He had no personal knowledge of the acreage contained.
Appellant emphasizes that the testimony of both Morse and Farris contain several references to the acreage, and that there are references to the value per acre. We attach no particular significance to that fact however, for in any land transaction involving a large tract of land to be purchased for commercial purposes, it would seem that acreage would be mentioned and in arriving at a price, an approximation of acreage would be considered. But we agree with the chancellor that there is no evidence that the price agreed upon and the consummation of the sale were based on a recited value per acre for an exact number of acres expressly represented to be contained in the tract. When asked how appellant reached its computation of the value of the property, Mr. Morse replied that the 10 acres in mind for the shopping center would amount of $100,000 and that the back, or industrial acreage, would amount to about $3,000 per acre or a total of $240,000 making a grand total of $340,000. The record then reveals the following:
'Q. So then it was a proposition of horse trading for the best price you could get from there down.
A. That's correct. That's correct. Naturally, we made a lower offer than that. * * *
Q. So you and Mr. Farris started off some few thousands of dollars apart and then tried to meet in the middle, is that correct?
A. That is correct.
Q. So really your negotiations in...
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Akin v. First Nat. Bank of Conway, CA
...reforming of written instruments to conform to the intent of the parties at the time they are executed. In Birch-Brook, Inc. v. Ragland, 253 Ark. 161, 165, 485 S.W.2d 225 (1972), the Arkansas Supreme Court quoted from a prior decision as In explaining the meaning of the rule of "the proof m......
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Simpson v. Johnson
...representation of the quantity of land encompassed by an accurate metes and bounds description, See, e. g., Birch-Brook, Inc. v. Ragland, 253 Ark. 161, 485 S.W.2d 225 (1972), and this rule has been held to be inapplicable where the metes and bounds description itself is in error and the sel......
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Wyatt v. Arkansas Game & Fish Commission
...solely to the quantity of the shortage but also to all other relevant facts and circumstances. Hays, supra; Birch-Brook. Inc. v. Ragland, 253 Ark. 161, 485 S.W.2d 225 (1972). A deed will not be held void for uncertainty of description if by any reasonable construction it can be made availab......
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Durham v. Smith
...Arkansas courts have denied relief in cases where the deficiency was greater than that in this case. See Birch–Brook, Inc. v. Ragland, 253 Ark. 161, 485 S.W.2d 225 (1972) (7.743–acre discrepancy out of 89.293–acre contract). The court in Birch–Brook noted many other cases where a court deni......