Cooper v. Rowe

• Decision Date: 12 October 1922
• Docket Number: 4 Div. 972.
• Citation: 94 So. 725,208 Ala. 494
• Parties: COOPER v. ROWE.
• Court: Alabama Supreme Court

94 So. 725

208 Ala. 494

COOPER v. ROWE.

4 Div. 972.

Supreme Court of Alabama

October 12, 1922

Rehearing Denied Dec. 7, 1922.

Appeal from Circuit Court, Coffee County; A. B. Foster, Judge.

Bill by R. L. Cooper against Laura E. Rowe for rescission of a contract for the purchase of timber and the cancellation of a mortgage. From a decree denying relief to complainant, he appeals. Affirmed.

M. A Owen, of Elba, and M. S. Carmichael, of Montgomery, for appellant.

W. W Sanders, of Elba, for appellee.

ANDERSON C.J.

The bill in this case seeks the cancellation of a sale of certain growing timber by the appellee to the appellant because of the alleged fraud or misrepresentation by her agent in making the sale. The evidence in this case was largely ore tenus and the conclusion of the trial court, who saw and heard the witnesses, is like unto the verdict of a jury, and will not be disturbed by this court upon appeal unless not supported by any phase of the evidence or unless contrary to the great weight of the evidence. Senoir v. State, 205 Ala 337, 87 So. 592; Ray v. Watkins, 203 Ala. 683, 85 So. 25. If the complainant's evidence tended to show actual fraud or misrepresentations on the part of appellee's agent, it was so controverted and in conflict with the respondent's evidence that a verdict by a jury thereupon in favor of the appellee would not be disturbed by this court. It is contended, however, by the appellant's counsel that the undisputed evidence shows that the appellant, Cooper, was carried over or through a portion of the Garrett timber, and, whether represented as being the Rowe timber or not, that Judge Rowe did not inform him that it was not his wife's timber, and, whether his conduct was mala fide or not, or whether he was himself ignorant of the fact that it was not his wife's timber, that there would be fraud in law (notwithstanding the ignorance of Judge Rowe, who was in a large measure relying upon Parker, who was familiar with the land, to carry them over the Rowe timber), under sections 4298 and 4299 of the Code of 1907. It is true that the undisputed evidence shows that they went through a portion of the Garrett timber when making the inspection, and that Cooper was not then informed that it was not the Rowe timber, but the evidence was in conflict as to the extent to which they went through the Garrett timber, the respondent's theory, and which was accepted by the trial...