Hirschman v. Hodges, O'hara & Russell Co.

• Citation: 51 So. 550,59 Fla. 517
• Court: United States State Supreme Court of Florida
• Decision Date: 08 February 1910
• Parties: HIRSCHMAN et al. v. HODGES, O'HARA & RUSSELL CO. et al.

51 So. 550

59 Fla. 517

HIRSCHMAN et al. v. HODGES, O'HARA & RUSSELL CO. et al.

Florida Supreme Court

February 8, 1910

In Banc. Appeal from Circuit Court, Lake County; W. S. Bullock Judge.

Bill by Max Hirschman, administrator of Ashley K. Peterson, and another, against Hodges, O'Hara & Russell Company and others, who filed a cross-bill. Decree dismissing bill and in favor of defendants on the cross-bill, and complainants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

A misrepresentation by a vendor to be a ground for a rescission of a contract must be in reference to some material thing unknown to the vendee, either from not having examined, or from want of opportunity to be informed, or from entire confidence reposed in the vendor, and his remedy must be pursued, in good time, after the injury is discovered. It is well established in equity that nothing but what is plainly injurious to good faith ought to be considered as a fraud sufficient to impeach a contract. The mere fact that an agreement is improvident is no ground for setting it aside. It can only be avoided because of surprise, or mistake, want of freedom, undue influence, the suggestion of falsehood, or the suppression of truth.

If after a representation of fact, however positive, the party to whom it was made institutes an inquiry for himself, has recourse to the proper means of obtaining information, and actually learns the real facts, he cannot claim to have relied upon the misrepresentation, and to have been misled by it. The same result must plainly follow, when, after the representation, the party receiving it has given to him a sufficient opportunity of examining into the real facts when his attention is directed to the sources of information, and he commences or professes to commence an investigation. The plainest motives of expediency and justice require that he should be charged with all the knowledge which he might have obtained had he pursued the inquiry to the end with diligence and completeness. He cannot claim that he did not learn the truth and was misled.

COUNSEL

[HIRSCHMAN V HODGES O'HARA & RUSSELL CO 51 So 550(1910)] Kay, Doggett & Smith, for appellants.

Barrs Odom & Browder and Hilburn & Odom, for appellees.

OPINION

HOCKER J.

This is an appeal from a decree of the circuit court of Lake county dismissing the bill of the appellants filed for the purpose of obtaining a rescission of a contract of sale of certain turpentine and other property made by the appellee corporation to appellant Peterson, and also an appeal from a decree prayed for in a cross-bill filed by appellees against appellants to foreclose a lien on the turpentine plant and a mortgage on other property given as security for the purchase price of the turpentine plant.

The bill alleges, in substance: That the appellee company through its agent, E. H. Tomlinson, in the months of November and December, 1906, advertised for sale a turpentine location situated in Lake, Orange, and Sumter counties, known as the 'Mascotte Turpentine Place,' which said turpentine location was alleged to include 20 crops of boxes, still fixtures, pump, dip barrels, commissary stock and store, and 12,000 acres of land which is described in the contract attached to the bill. That complainant read the advertisement, and got into communication with Hodges, O'Hara & Russell Company through its agents, the defendants Hodges and Russell and its vice president, secretary, and general manager F. J. O'Hara, and by false and fraudulent representations of its agents aforesaid, especially O'Hara, interested complainant in the purchase of said turpentine location. That these parties, especially O'Hara, falsely and fraudulently represented to complainants that the turpentine location contained 12,000 acres of land, 20 crops of first and second year boxes, and enough round timber to cut 20 more boxes, and that said location had been surveyed by a timber surveyor, and that it had been estimated by said surveyor said location would cut 42,000,000 feet of lumber. That complainant, A. K. Peterson, was influenced by the false and fraudulent representations aforesaid to go to Lake county with O'Hara for the purpose of inspecting said turpentine place, and O'Hara sent an agent, one J. H. Boyd, to point out the lands covered by said location. That Boyd instead of pointing out the lands included in the contract hereinafter described, acting under the instructions of O'Hara, pointed out to complainant about 4,000 acres of finely timbered land, not included in said location and not described in the contract, and only pointed out the best lands in the location, and falsely represented that none of the lands contained in said location were swamp or marsh lands except about one acre, which was pointed out to complainant, and that none of the said lands had been turpentined.

(2) That influenced by the representations of defendants and their agent, Boyd, complainant was finally induced to enter into negotiations for the purchase of said turpentine location, but, before entering into any sort of negotiations for the purchase of said turpentine location, complainants demanded an abstract of title covered by said location. That O'Hara replied the abstract was in the hands of attorneys of the company at Palatka, Fla., who prepared the same, and that he would go to Palatka and get said abstract. That on the following day O'Hara returned from Palatka, and said he had the abstract sent to the clerk of the circuit court of Lake county to be brought up to date, and that same would be returned in a few days. That complainants waited about two weeks for the return of said abstract, and same was not delivered to them, but, relying on the assurance of defendant O'Hara that the title of defendant company to said lands was perfect, complainants were induced to enter into an agreement whereby complainants agreed to purchase said turpentine location upon the terms and conditions designated in a written agreement, a copy of which is attached to the bill as a part of it, marked 'Exhibit A,' and that, to secure the payment of the notes herein described, complainant Peterson and his wife executed a mortgage upon certain property in Jacksonville which is described owned by complainant Emma Peterson in favor of defendant company. That the mortgage was drawn by defendants' attorney, George M. Powell, and was left by complainants with said Powell in escrow to be delivered [HIRSCHMAN V HODGES O'HARA & RUSSELL CO 51 So. 550(1910)] to defendants when the said abstract of title to the said land in said contract had been delivered to complainants and the title of defendants had been pronounced satisfactory by the attorneys of complainants. That, after the execution of said contract, complainant A. K. Peterson took possession of said turpentine location, and from time to time has learned of the fraudulent misrepresentations of the defendants. That about 4,000 acres of the best land which was pointed out to complainant as aforesaid, and represented to be included in said location, is not included therein, but is owned by parties other than defendants, which fact was not ascertained until after complainant Peterson surveyed and established the line of the land included in said Mascotte Turpentine location. That, instead of said location containing 20 crops of boxes, it does not contain more than 11. That, instead of sufficient green timber to cut 20 crops, it does not contain sufficient to cut more than 4 crops. That complainant has learned since the execution of said contract defendants never had the timber upon said location estimated by a timber surveyor, and that the amount of the timber is far short of the amount represented. That the defendant company does not own large portions of the land described in said contract, and that complainants had been obliged to abandon large portions of the land described in said contract because it had been shown complainants that the titles of others are superior to that of the defendant company, and that the complainant Peterson had been threatened with a criminal prosecution for working certain portions of said land for turpentine purposes. That defendants have refused to deliver to complainants the abstract of title, and complainants are informed and believe and so charge upon information and belief. That an abstract of title will disclose the fact that defendant company has no title to a large portion of the lands included in said location and described in the contract.

The bill then charges that George M. Powell has delivered the mortgage to the defendant company, and that it will assign same to an innocent purchaser for value and without notice, unless restrained, etc.

The bill then offers to deliver possession of said turpentine location to defendant company at any time that may be designated by the court, and contains prayers for the cancellation of the contract, for a perpetual injunction against the transfer of the mortgage, for general relief, etc.

The agreement bewteen the Hodges, O'Hara & Russell Company, a corporation, of the first part, and A. K. Peterson, of the second part, attached to the bill as part of it, provides 'that the parties hereto in consideration of the mutual and dependent covenants and agreements hereinafter contained have agreed and by these presents do agree as follows:

'First. The said party of the first part does hereby agree to sell and convey unto the party of the second part, by special warranty deed and the price and upon the terms and conditions hereinafter set forth, all of the rights, title, and interest of the said first party in and to all of the following described real and personal property situate, lying, and being in the county of Lake and the ...