Brown v. Ohman, 37171

• Decision Date: 31 December 1949
• Docket Number: No. 37171,37171
• Parties: BROWN v. OHMAN et ux.
• Court: Mississippi Supreme Court

Page 727

43 So.2d 727

BROWN v. OHMAN et ux.

No. 37171.

Supreme Court of Mississippi, in Banc.

Dec. 31, 1949.

Guyton & Allen, Kosciusko, Morgan, Thornton & Morgan, Kosciusko, Jno. D. Guyton, Kosciusko, for appellant.

Means Johnston, Greenwood, Hardy Lott, Greenwood, for appellees.

SMITH, Justice.

Impressed by appellant's brief on the suggestion of error, we called for a reply from appellees, with the privilege to appellant of filing a rejoinder.

These briefs are now before us, so that we have both them and the briefs on the original submission, and we have carefully considered all of them; reexamined the record of the trial; reviewed the controlling, specially concurring and dissenting opinions on the first hearing of the appeal in this Court, to which the suggestion of error is directed; and have again had the case in conference.

We have finally concluded that the suggestion of error should not be sustained, and it is, therefore, overruled.

Suggestion of error overruled.

HALL, Justice.

I concur in the opinion overruling the suggestion of error, but the dissenting opinion thereon raises a number of questions which were not presented upon the original hearing of this case, and these are such that I consider a response thereto necessary in order that the entire record of this case may be properly before the bench and bar of the state.

It is contended, First, that under the law of this state there is an obligation upon a purchaser to investigate and when the purchaser has an opportunity to inspect the property and undertakes to inspect it, he cannot thereafter claim that he relied upon false representations of the vendor. To support this statement of the law, the dissenting opinion cites and quotes from the case of Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 426, 427, following which the dissent concludes that there this Court recognized the rule that where the means of information are equally accessible to both parties, the purchaser has no right to rely upon the representations of the seller. Hunt v. Sherrill affords no basis for such a conclusion. In that case the Court did hold that the defendant was entitled to an instruction under the facts there prevailing that if the defects and shortages 'could easily have been ascertained by a casual examination * * * and if the plaintiff had an opportunity to make such examination and failed to so examine the articles in the said hotel, then and in that event the jury shall find for the defendant.' The articles in question in that case were the make and condition of two large refrigerators, the value and amount of new linen, and the quantity and quality of the beds in the hotel; the plaintiff contended that the defendant would not permit an inspection of the articles in the hotel and the defendant denied this; thus there was presented a square issue of fact for the jury. In the case at bar, Mr. Ohman testified with reference to his inspection of the timber on the place 'the water was up and we couldn't get in and look at it.' Harry L. Davis, the real estate agent working with Abernathy, who was offered as a witness by appellant, Brown, testified: 'Q. Did Mr. Ohman go out in the timber? A. Not very much as the water was in the sloughs.' J. L. Patterson, another witness for Brown, testified that there was no water in the woods, but that Olman did not go out into the woods except at one place 'about as far as from here to the door.' Patterson's other testimony will be mentioned later herein. From the foregoing, it is seen that there was an issue of fact as to whether it was possible for Ohman to go into the woods and inspect the timber which Brown represented was on the land; the chancellor having found that issue against appellant the matter is not open for review by us.

Reverting, now, to the above-mentioned statements in the dissenting opinion as to law of this state that where the information is equally accessible to both parties, the purchaser has no right to rely upon the representations of the seller, the last announcement of the law by this Court was in Reed v. Charping, 41 So.2d 11, 12, not yet reported in the State Reports, where we quoted with approval from Nash Mississippi Valley Motor Company v. Childress, 156 Miss. 157, 163, 125 So. 708, 709, as follows: 'A purchaser has a right to rely upon the representations of a seller as to facts within the latter's knowledge, and the seller cannot escape responsibility by showing that the purchaser upon inquiry, might have ascertained that such representations were not true. Contributory negligence is not a defense to an action based on fraud. If a false statement is made by one who may be fairly assumed to know what he is talking about, it may be accepted as true, without question and without inquiry, although the means of correct information are in reach.' This being the law of this state as announced as recently as June of this year, the statements to the contrary, as set out in the dissenting opinion, are clearly without support.

Corley v. Reed, 164 Miss. 678, 145 So. 241, cited in the dissenting opinion, is wholly beside the point involved in the case at bar. There Corley lived in Colorado and the Reeds who purchased from him lived in the Mississippi Delta upon lands adjoining those which they purchased from Corley. The Reeds claimed that Corley had misrepresented the number of acres in cultivation but it was shown that Corley had never lived on the place, that the Reeds had made a careful and thorough inspection of the property before they bought from Corley, and this Court merely held upon all the facts in that case that the knowledge of the Reeds as to the cultivated acreage was superior to the knowledge of Corley.

The dissenting opinion states that 'the uncontradicted proof showed that Ohman had full opportunity to inspect the timber and was as competent to estimate its value as was Brown.' The foregoing quotations from the record show that Ohman did not have full opportunity to inspect the timber. Both he and one of Brown's witnesses swore that the water was up through the woods so that he could not get in and look at it. As to the estimate of value, the question in this case is not one of value but is one of quantity, viz., whether Brown and his agents represented that there were 1,200,000 feet of merchantable timber on the land.

The dissent gives much credence to the testimony of Brown's witness, Patterson. Of course, it is the province of the chancellor to pass upon the credibility of witnesses for the very sufficient reason that he has the opportunity of observing their demeanor, but in this case the cold typewritten page shows enough to justify the chancellor in rejecting everything that Patterson swore. He said that when Ohman came on the first trip to look at the land, Ohman asked him about the timber and said he would send a timber man to look at it, and on the very next day a timber man came and spent two and a half days going through the half-section of timber, and 'He said there was around ten or twelve million thousand feet of timber.' Then, when trying to explain what the alleged timber man said, Patterson finally testified that the timber estimator said there was 'twelve thousand feet of timber on the place, something like that.' Then, as this man left the place, Patterson testified that another one came and went through it and left without telling him how much timber he found, but that Patterson's wife wrote Mr. Brown about it. All this is alleged to have occurred in the week after Ohman and Brown had first met in Abernathy's office, yet Brown testified that on their first meeting, a week before the alleged cruises of the timber: 'Here is exactly what it was. I told Mr. Abernathy and Mr. Ohman that Mr. Patterson told me, or had written me--I have forgotten which--I heard him say a while ago that he had written--I don't know--that two men came down there and looked over that timber, and one of them said around eight hundred thousand feet and another said a million, or something like that. I didn't know who they was or what they was; I wasn't a timber man, and neither did I know anything about timber from any angle. * * * Well, Mr. Ohman asked me would I go down there with him, I think it was the following Sunday and look the property over with him. I told him No, sir, I didn't transact any business of any kind on Sunday, but that I would be willing to go with him some time later. I couldn't go down there on Sunday. And so Mr. Abernathy then asked Mr. H. L. Davis, a man working for him at that time as real estate salesman, would he go down there with him on Sunday and show him the place. Mr. Davis told him yes he would be glad to go. And so Mr. Ohman and Mr. Davis were planning when I left Memphis on going down there the following Sunday. Whether they went or not I don't know.' From this, it is seen that Brown testified that on his first meeting with Ohman and before Ohman had ever seen the property, he was merely reporting to Ohman what some unknown timber estimators had told Patterson, and yet Patterson testified that these estimators did not come to the place until on the Monday following the Sunday when Ohman had been there the first time. On cross-examination, when Brown had been hemmed up on the matter, and when he realized that his testimony was in direct conflict with that of his witness Patterson, he first denied having testified that the statements were made on the occasion of his first meeting with Ohman, and finally stated as to the time when he told Ohman and Abernathy about the timber estimators 'to the best of my recollection I think it was after we signed up the contract and everything else on it, and the whole deal was finished.' Patterson was one of the witnesses used by Brown in an effort to show that there was a substantial amount of timber on the land and he testified with much emphasis that there was a lot of timber on the place but that the most of it...