Carney v. Harbert

• Decision Date: 07 September 1897
• Citation: 44 W.Va. 30
• Court: West Virginia Supreme Court
• Parties: Carney et al. v. Harbert et al.

44 W.Va. 30

Carney et al.

v.Harbert et al.

Supreme Court of Appeals of West Virginia.

Submitted September 7, 1897-Decided November 20, 1897.

Contracts Rescission of Contract Fraud.

Where a person enters into a contract for the purchase of a known body of coal, supposed to contain three hundred acres, but the same has been diminished to less than two hundred acres by valid conveyances of the more desirable portion thereof, made by the grantor owner to his children, without the knowledge of the purchaser, and which knowledge is withheld from him by the owner until after a deed is executed, such purchaser will not be compelled to complete such contract, but the same at his instance, will be rescinded.

Appeal from Circuit Court, Harrison County.

Bill by C. B. Carney & Co. against B. W. Harbert and others. From a decree in favor of defendants, plaintiffs appeal.

Reversed.

John Ba&sel and John J. Davis, for appellants.

Charles W. Lynch, for appellees.

Dent, Judge:

C. B. Carney ct al. appeal from a decree of the Circuit Court of Harrison county entered in a cause therein pending-wherein appellants were plaintiffs and Benjamin W. Harbert et al. were defendants. The error assigned is that the Circuit Court refused either to enforce specific performance of the contract, as claimed by the plaintiffs, or rescind the same. The facts are as follows: On the 12th day of February, 1890, C. B. Carney & Co. obtained a coal option from Benjamin W. Harbert upon about three hundred and fifty-five acres of land, less fifty acres, reserved, lying-on the waters of Robinson s run, in Harrison county, at the price of twenty dollars per acre, to run until the 12th of February, 1892. Before the option expired, Carney & Co. claim that Harbert ag reed to reduce the price to fifteen dollars per acre. This is denied by Harbert, who claims that he agreed to reduce to seventeen dollars per acre if sale was at once made. This was not done. On the day the option was to expire, four hundred and seventy-five dollars was paid to Harbert by Carney & Co. on the contract, under the belief that the price had been reduced to fifteen dollars per acre, but Harbert claims "as nominated in the bond," and refused to complete the contract at the reduced price, or return the payment. The matter remained in this condition until December 30, 1892. In the meantime the membership of Carney & Co. had changed by the substitution of new members for the old, with the exception of C. B. Carney. At this time, to wit, the 30th day of December, 1892, Carney & Co. sent Messrs. Randall and Meredith to Harbert for the purpose of renewing the option on the same land, and they obtained the following option:

"December 30th, 1892. In consideration of four hundred and seventy-five dollars, paid on the 12th day of February, 1892, for which receipt was given, which has been paid, the receipt of which is hereby acknowledged, which is to be a credit on the first payment, I have this day sold the 9 (nine) foot or Pittsburg-vein of coal underlying-my land, supposed to contain three hundred acres, more or less, to C. B. Carney & Co., at the price of seventeen dollars per acre, the balance of the one-third payment to be paid as soon as sufficient deed is made and delivered and notes executed for the deferred payments, said notes to bear interest at the rate of six per cent, from date of delivery of deed until date of maturity of said deferred payments, which is to be paid in two annual payments from the date of first payment. Said second parties is to have the usual mining privilege.

his

"B. W. x Harbert.

mark

"Witness: G. F. Randall.

"This is a fair bargain and sale.

"G. F. Randall.

"F. M. Meredith.

"G. W. Thompson.

About February, 1893, Harbert executed and delivered to Carney, for Carney & Co., a deed for one hundred and eighty-seven acres of coal, claiming that this, with the reservation of about twenty-eight acres, was all the coal under his lands. During the existence of the old option he had conveyed away about ninety-live acres of the coal to his children and son-in-law. Of tins Carney & Co. had no knowledge. Harbert clai ms that he informed their agents, Randall and Meredith, at the time of signing the last option, that he had only about two hundred and thirty-five acres of land. But they both deny the same, and claim to have had no information of the transfers to the children. Harbert refusing to make good the deficiency in the amount of the coal by inducing his children to convey the same to Carney & Co., they instituted this suit to compel a conveyance and for general relief. Answers were filed, and depositions taken, and on the hearing the court refused plaintiffs any relief, but entered a decree against them in favor of Harbert for the unpaid purchase money, and directed a sale of the coal.

The testimony of numerous witnesses was taken, and much thereof is...