Biscayne Boulevard Properties, Inc. v. Graham

• Decision Date: 02 June 1953
• Citation: 65 So.2d 858
• Parties: BISCAYNE BOULEVARD PROPERTIES, Inc. et al. v. GRAHAM.
• Court: Florida Supreme Court

Page 858

65 So.2d 858

BISCAYNE BOULEVARD PROPERTIES, Inc. et al. v. GRAHAM.

Supreme Court of Florida, en Banc.

June 2, 1953.

Rehearing Denied July 16, 1953.

Sibley & Davis, Miami Beach, for appellants.

Kurtz, Reed, Sappenfield & Cooper, Miami, for appellee.

HOBSON, Justice.

We recognize the fact that this Court has laid down the general principle of law which counsel for appellants contend is applicable in the instant case. In Joiner v. McCullers, 158 Fla. 562. 28 So.2d 823, 824, we stated said principle in the following language:

'In Wheeler v. Baars, 33 Fla. 696, 15 So. 584, we held:

"A false representation of a material fact, made with knowledge of its falsity, to a person ignorant thereof, with intention that it shall be acted upon, followed by reliance upon and by action thereon amounting to substantial change of position, is a fraud of which the law will take cognizance."

However, we must likewise take cognizance of the universally accepted rule that whether actually such a false representation was made is a question of fact. Both the special master and the Chancellor resolved the query whether there had been a false representation of a material fact amounting to a fraud, against appellant. Evidently the master invoked the rules which we have repeatedly pronounced that fraud is never presumed and that the burden of proof is on the party who asserts it. We have held many times that fraud can be established only by clear and convincing evidence and that every one of the elements making up fraud must be clearly proven.

We have concluded, upon a careful examination of the transcript of the record, that the special master, as well as the Chancellor was unquestionably correct in holding that the appellants failed to prove the alleged misrepresentation which was tantamount to a charge of fraud, by clear and convincing evidence. The rules invoked herein with reference to the burden and character of proof which must be caried and made in order to sustain a charge of fraud are all the more applicable in a case wherein, as here, the party charged with the fraud dies before testimony is taken. Barnes v. Willis, 65 Fla. 363, 61 So. 828; Green v. First National Bank of Marianna, 85 Fla. 51, 95 So. 231. Indeed, in such a case parol evidence should be not only clear, positive, unequivocal and convincing but should be of a conclusive, or well nigh conclusive character. Certainly, testimony which suggests fraud by inference or conjecture only is insufficient to meet the degree of proof required in a case of the type under consideration.

Moreover, the witness Wesley McCravy, upon whose testimony appellants relied to establish the alleged misrepresentation by silence or passive assent, was not only an employee of the purchaser, Mr. Childers, but is also his nephew. The special master and the Chancellor had the right to consider such facts in determining the weight which should be given to McCravy's testimony, particularly in light of the fact that the seller who is charged with misrepresentation amounting to fraud died before evidence was taken in this cause. Then too, there is no showing that Mr Childers was in need of a guardian or that he was inexperienced in the purchase and sale of real property. Indeed, the record shows that he had previously engaged in such transactions. It should have been obvious to him when he received his deed that it only conveyed to him 'the Northeasterly 15 feet of Lot 4, according to plat of subdivision of Government Lot 2, of Section 33, Township 52 South, Range 42 East, as recorded in plat book 3, at page 55, of the Public Records of Dade County, Florida.'

It has been suggested that appellants should have prevailed in the court below upon the theory of a mutual mistake. While it may be true that a mutual mistake as to the quantity of land conveyed might justify an abatement in the purchase price, it is well established that the pleading of the party charging a mutual mistake must allege in clear and positive terms that a mutual mistake did in fact exist at the time of the transaction and, what is more important, it is apodictic under our adjudications that after making such an allegation the burden rests upon the party charging a mutual mistake to establish by clear and convincing evidence the existence of such a mistake. Appellants failed in the first instance to allege in clear and unambiguous language that there had been a mutual mistake and, in the second place, they did not even attempt to prove a mutual mistake but relied in their pleading and in the proof upon conduct which they contend amounted to misrepresentations tantamount to fraud. There is no basis in this record even for a...