Dolle v. Melrose Properties, Inc.

• Decision Date: 23 January 1934
• Citation: 252 Ky. 482
• Parties: Dolle v. Melrose Properties, Inc.
• Court: United States State Supreme Court — District of Kentucky

Page 482

252 Ky. 482

Dolle v. Melrose Properties, Inc.

Court of Appeals of Kentucky. Common Pleas Branch, Third Division.

Decided January 23, 1934.

1. Trial. — Whether evidence is sufficient to take case to jury is question of law for court, and, if there is scintilla of evidence, case should be submitted to jury.

"Evidence" within the scintilla rule is something of substance, or carrying quality of proof, or having fitness to induce conviction.

2. Trial. — Weight of evidence is for jury, and peremptory instruction should never be given if there is any competent relevant evidence warranting recovery and when facts proved with inferences deducible therefrom, considered most favorably to plaintiff, sustain action alleged.

3. Trial. — Where facts are doubtful, different inferences may arise, or, where evidence is conflicting, question is for jury.

4. Vendor and Purchaser. — Purchaser had burden to establish that alleged fraudulent representations relied upon were made; that vendor or its agent knew they were false or made them without knowledge of their truth as positive assertions with intention of inducing purchaser to act, and that he acted in reliance thereon.

5. Fraud. — Misrepresentation, to be actionable, must concern existing or past facts, and not future promise, prophecy, or opinion of future event, unless declarant falsely represents his opinion of future happening.

6. Fraud. — To sustain cause of action for fraud, showing of falsity of statement was as indispensably necessary as proving making thereof.

7. Vendor and Purchaser. — In vendor's action on purchaser's notes, evidence of fraudulent representations of vendor's agent respecting construction of hotel, contiguous to lots sold purchaser, held insufficient for jury.

8. Vendor and Purchaser. — Evidence, in vendor's action on purchaser's notes, did not show vendor's agreement to build hotel contiguous to lots sold purchaser, or vendor's breach thereof.

9. Fraud. — Promise is not in itself false representation.

10. Fraud. — Charge of fraud may be predicated upon nonperformance of promise, where promise is accompanied by present intention not to perform and is made to deceive promisee.

11. Vendor and Purchaser. — Evidence in vendor's action on purchaser's notes failed to show that vendor did not intend to perform promise to construct hotel, that promise was made to deceive purchaser, and that nonfulfillment thereof was not in good faith.

12. Vendor and Purchaser. — Evidence in vendor's action on purchaser's notes wherein purchaser alleged fraud of vendor's agent held sufficient to support verdict for vendor.

13. Evidence. — In vendor's action on purchaser's notes, wherein purchaser alleged fraud respecting promise to construct hotel, testimony regarding cost of hotel construction held admissible, where based on witness' personal knowledge, though contract and corporation records might show same facts.

14. Appeal and Error. — Where vendor, suing on purchaser's notes, was entitled to peremptory instruction at close of purchaser's evidence, purchaser could not complain of admission thereafter of incompetent evidence.

15. Vendor and Purchaser. — Purchaser, claiming he was induced to execute notes and purchase contract by fraud, had duty to exercise promptly election to rescind therefor on obtaining knowledge of fraud.

16. Contracts. — Right to rescind because of fraud or fraudulent representation must be asserted promptly.

17. Cancellation of Instruments. — Petition in action for rescission should negative laches.

Appeal from Jefferson Circuit Court

WALTER S. LAPP for appellant.

MORRIS B. GIFFORD for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

Pending the height of the "Florida boom," Fred J. Dolle, an urbane but unsophisticated resident of Jefferson county, Ky., actuated by an insatiable longing for riches, silentiously ventured, in the vicinity of Miami, into the financial denouement. The Melrose Properties, Incorporated, was the owner of lots comprising a fancy subdivision of a remote addition to the picturesque city of Miami. The E.D. Noe Company was its selling agent, and Throgmorten, a former acquaintance and friend of Dolle, was a salesman of the E.D. Noe Company. Throgmorten succeeded in agreeing with Dolle on the price and terms of the sale of certain lots within the subdivision. In accordance therewith, the Melrose Properties, Incorporated, executed and delivered to him a deed, conveying the lots for the agreed consideration of $2,500, of which $650 was cash, the balance evidenced by notes; $312.50, payable September 10, 1925; $312.50 on the 10th day of March, 1926; $312.50 on the 10th day of September, 1926; $312.50 on the 10th day of March, 1927; $312.50 on the 10th day of September, 1927; and $312.50 on the 10th day of March, 1928. Dolle accepted the deed, paid two of the notes and refused to pay the other four.

This action was instituted in the Jefferson circuit court to recover of him the amount of the four unpaid notes and interest. To escape payment, he claims the payment of the $1,250 of the consideration and the execution and delivery of the notes were induced by fraud and fraudulent representation on the part of the agent of the Melrose Properties, Incorporated. He specifically charges:

"That the said lots they sold him were a part of what was represented to him to be a well developed sub-division of the property in Dade County, Florida, known as Melrose Heights. It was represented to him at the time of said purchase and prior thereto, that said Melrose Heights had been thoroughly subdivided and that more than two-thirds of said lots had been actually sold and paid for; that a plat of said sub-division was exhibited to this defendant and upon said plat there appeared a large space of ground, being about two city blocks square, that had been reserved for a large hotel; it was further represented to this defendant as a basis for the sale of such lots, that all necessary moneys had been set aside by the plaintiff for the purpose of building a large and expensive hotel upon said site of ground as shown in said plat; that contracts had been fully let for the building of said hotel; that said hotel was being rushed to completion and that the nearness of said hotel, when completed, to the lot of ground sold to this defendant would greatly enhance the value of this defendant's lots, that said representations of said agents were false and fraudulent; that it was not true that more than two-thirds of the lots in said sub-division had been sold and paid for; that it was not true that said money had been set apart for the building and completion of said hotel and that same was being rushed to an early completion; that the fraudulent statements were made to this defendant for the purpose of inducing him to buy said lots and to part with the sum of $1,250.00 in cash and executed the notes sued upon; that he relied upon said representations, and but for said representations would not have purchased said lots or parted with his cash and executed notes as set forth in the petition; that said sub-division has not been developed and said hotel property had never been completed."

Issue was joined on this defense. On the trial before a jury, after hearing all of the evidence, the Melrose Properties, Incorporated, requested a peremptory instruction. It was refused. The case was submitted on instructions not now complained of. Certain evidence was admitted to which Dolle objected. He is insisting he is entitled to a reversal solely because of this objectionable evidence. The Melrose Properties, Incorporated, contends it was entitled to a peremptory, and, even though the objectionable evidence was incompetent, it was not prejudicial.

In every case, whether the evidence is sufficient to take the case to the jury is a question of law for the court, Small's Adm'r v. Peters, 233 Ky. 576, 26 S.W. (2d) 491, and, if there is a scintilla of evidence, the case should be submitted to the jury, Stanley's Adm'r v. Duvin Coal Co., 237 Ky. 813, 36 S.W. (2d) 630, 634; Iseman v. Hayes, 242 Ky. 302, 46 S.W. (2d) 110, 85 A. L.R. 996. "Evidence" within the scintilla rule is something of substance, or "carrying quality of proof, or having fitness to induce conviction." Park Circuit & Realty Co. v. Ringo's Guardian, 242 Ky. 255, 46 S.W. (2d) 106, 107; Duff v. May, 245 Ky. 709, 54 S.W. (2d) 4; Honaker v. Crutchfield, 247 Ky. 495, 57 S.W. (2d) 502; Owens v. National Life & Acc. Ins. Co., 234 Ky. 788, 29 S.W. (2d) 557; Cecil v. Oertel Co., 239 Ky. 825, 40 S.W. (2d) 328; Dossenbach et al. v. Reidhar's Ex'x et al., 245 Ky. 449, 53 S.W. (2d) 731. The probative value and weight of the evidence are questions for the jury, and a peremptory instruction should never be given if there is any competent, relevant evidence warranting a recovery. A verdict should not be directed when the facts proven, together with inferences fairly deducible therefrom, considered most favorably to the plaintiff, sustain the action alleged. Bryson et al. v. Raum's Adm'r, 243 Ky. 121, 47 S.W. (2d) 927; Perry's Adm'x v. Inter-Southern Life Ins. Co., 248 Ky. 491, 58 S.W. (2d) 906. Or, if there is a doubt as to facts, or where different inferences may arise, or where the evidence is conflicting, the question is for the jury. Kentucky Utilities Co. v. Sapp's Adm'r, 249 Ky. 409, 60 S. W. (2d) 976; Gayheart et al. v. Smith, 240 Ky. 596, 42 S.W. (2d) 877.

In Stanley's Adm'r v. Duvin Coal Co., this general rule was quoted with approval:

"`The rule in this state is that, if the plaintiff makes out his case, however much the evidence for the defendant may overbalance that introduced by the plaintiff, he is entitled to have the jury pass upon the issue; and that the court cannot in such a case give a peremptory instruction, although he may be of opinion that, if the jury should find a verdict for the plaintiff, it should be set aside, and a new trial granted.' Curran...