Bonner v. Bynum

• Decision Date: 25 February 1895
• Citation: 18 So. 82,72 Miss. 442
• Court: Mississippi Supreme Court
• Parties: T. B. BONNER v. JOHN H. BYNUM

18 So. 82

72 Miss. 442

T. B. BONNER v. JOHN H. BYNUM

Supreme Court of Mississippi

February 25, 1895

FROM the chancery court of Jones county, HON. W. T. HOUSTON Chancellor.

This is a bill by J. H. Bynum seeking a rescission of a contract for the sale of land and a cancellation of the deed. Bynum, at the time of his purchase, resided in Ellisville, Jones county, Mississippi, and Bonner, defendant, resided in Saundersville, in the same county. The land was situated in Clarke county, Alabama, and the purchase was made by Bynum through one Carter, a real estate agent in Meridian, Miss with whom the land had been placed for sale by Bonner. The facts throwing light on the sale and the attempted rescission, as found by the court from the record, are stated in the opinion. There was a decree for complainant, and defendant appeals.

Affirmed.

N. C Hill, for appellant,

Filed a brief mainly discussing the evidence, and, as to the questions of law involved, making the following points:

Complainant must make out a clear and undoubted case in order to obtain rescission. Ayers v. Mitchell, 3 Smed. & M., 683; Moss v. Davidson, 1 Ib., 112. A slight misrepresentation will not suffice to rescind. Hall v. Thompson, 1 Smed. & M., 443. What would constitute a well timbered tract of land is a matter of opinion. There is no proof of actual fraud or effort to conceal the truth.

It is not shown that appellee was injured by the misrepresentations, if any there were. Fraud, without consequent damage, is not ground for action or relief from contract. Davidson v. Moss, 5 How., 673, and 1 Smed. & M., 112. It is plain that appellee waited two years, and when times got hard and lands went down, he now seeks to rescind to get his money back with interest. It is settled than an offer to rescind must be made as soon as fraud is discovered, unless a sufficient reason is given for not doing so. Davis v. Heard, 44 Miss. 50; Railroad Co. v. Neighbors, 51 Ib., 412.

Shannon & Hardy, for appellee.

1. The fraudulent misrepresentations are clearly established. Fraud consists in any intent calculated to deceive, whether it be suppression of the truth or suggestion of what is false. Bispham Eq., 206. Any damage, however small, will be enough to set the court in motion to rescind. Bispham, 217.

2. There was no unreasonable delay in the application for rescission. The lapse of time to bar rescission has never been held to be any determined number of days or years. Oil Co. v. Marbury, 91 U.S. 587. The right accrued only after discovery of the facts, and a person is not required to exert himself to discover the facts, but only to be prompt to take advantage of them when known. 21 Am. & Eng. Enc. L., 50; 12 Ib., 604. Two and a half years was held not unreasonable delay in 37 Am. St. R., 897. So long as the relative position of the parties is not altered, delay is of little consequence. 12 Am. & Eng. Enc. L., 544. See, also, Liddell v. Sims, 9 Smed. & M., 596; Gilpin v. Smith, 11 Ib., 109; Alexander v. Beresford, 27 Miss. 747; Rimer v. Dugan, 39 Ib., 477; Foxworth v. Bullock, 44 Ib., 457.

OPINION

WOODS, J.

In February, 1891, the appellee purchased from appellant a tract of land in Clarke county, Alabama, containing 760 acres, paying therefor $ 2,090. In December, 1892, appellee exhibited his bill for rescission of the sale, because of certain false and fraudulent misrepresentations as to the land, made by appellant or his authorized agent, on which misrepresentations the purchaser relied in making the contract.

That Carter was the authorized agent of Bonner in making the sale is not denied; that this agent, ignorant himself of the condition of the land, and relying on and repeating the representations of his principal, did grossly misrepresent the character of the land is not denied; and that appellee purchased in reliance on these misrepresentations is overwhelmingly established. The lands were represented to him to be pine timbered lands, and all uncleared, except 30 or 40 acres. The truth was, about 200 acres of the land had been stripped of timber, and was, at the time of the sale, worn out and abandoned; and the further truth was that it was not well timbered pine land. The appellee, the appellant, Carter, appellant's agent, and the other witnesses examined fix in the mind a thorough conviction that the purchase was made on gross misrepresentations relied upon by the purchaser.

It is contended for appellant that the...