Hunt v. Sherrill

• Decision Date: 25 October 1943
• Docket Number: 35398.
• Citation: 195 Miss. 688,15 So.2d 426
• Court: Mississippi Supreme Court
• Parties: HUNT v. SHERRILL.

15 So.2d 426

195 Miss. 688

HUNT v. SHERRILL.

No. 35398.

Supreme Court of Mississippi

October 25, 1943

W L. Guice, of Biloxi, and Lyell & Lyell, of Jackson, for appellant.

White & Morse, of Gulfport, for appellee.

ROBERDS Justice.

In August, 1941, Hunt, appellant, sold, and by deed conveyed, to Mrs. Sherrill, appellee, the Riviera Hotel in Biloxi Mississippi, with all furniture, fixtures and furnishings therein and all appurtenances and improvements thereunto belonging, including the trade name and good will of the hotel. The consideration was seventy-five thousand dollars. Mrs. Sherrill paid fifteen thousand dollars cash and assumed an existing, and executed to Hunt a second, mortgage debt on the property for the balance. The property was sold purchased and conveyed as an entirety, no value being placed by the parties upon any separate part, class or article thereof.

Mrs Sherrill, in this action of fraud and deceit, claims that Hunt misrepresented to her (1) the make and condition of two large refrigerators, and (2) the value and amount of new linen, and (3) the quantity and quality of the beds in the hotel, which false representations induced her to make the purchase; and she sues for, and limits her action to, the damage as to these three classes of property. She obtained a verdict and judgment for $1,843.55, the aggregate amount for which she sued. She does not claim in this action that the hotel as an entirety in the actual condition delivered to her was not worth the price she paid for it. The effect of that theory of the action and damage, and the further proceedings and facts of the case necessary to an understanding of the questions presented on this appeal, will be developed as we dispose of these questions.

Hunt assigns as error the refusal of the court to grant him this instruction: "The Court instructs the jury on behalf of the defendant, that if the defects complained of in the articles purchased and the shortages alleged in the articles purchased could easily have been ascertained by a casual examination of the Hotel Riviera before the plaintiff purchased same, 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."

He says that in Deshatreaux v. Batson, 159 Miss. 236, 131 So. 346, this Court announced the rule that where the means of information are equally accessible to both parties the purchaser has no right to rely upon representations of the seller. See, also, Citizens Nat. Bank v. Pigford, 176 Miss. 517, 166 So. 749. Without now trying to clarify, or to define with exactness the stated rule, it was error not to grant this instruction under the evidence in this case. The testimony of Mrs. Sherrill shows that her failure to examine the contents of the hotel was not due to statements made to her by Hunt as to the quantity and quality of such contents, but was because, as she claims, Hunt refused to grant her request to go into the hotel and make such examination. She testified that she and her attorney and adult son went to the hotel, "and I suggested that I go into the hotel and look at it, and Mr. Hunt told me that would disrupt the organization to have a prospective buyer nosing around the hotel." This was after Hunt supposedly made his representations. In other words, Mrs. Sherrill desired and intended satisfying herself as to the contents of the hotel by personal inspection and examination thereof regardless what she claims had been said to her by Hunt about them. Had she done that, she could easily have ascertained the quantity and condition of the refrigerators, linen and beds, in which case, had the alleged shortages and defects existed, she naturally would have taken these conditions into consideration in making her trade. But she did not examine for herself solely because Hunt told her to stay out. Hunt emphatically denied that he said or did these things, and denied that he did anything to prevent such inspection by Mrs. Sherrill personally or through an agent. Opportunity of examination mentioned in the requested instruction meant, under this record, permission or refusal by Hunt to make it. Again, whether Hunt did or did not in this manner prevent inspection was an important fact bearing upon whether he defrauded her.

Instructions, regardless of the theoretical law announced thereby, should be applicable to the issues and proof of the particular case. Dennis v. Jones, 31 Miss. 606; Lombard v. Martin, 39 Miss. 147; Williams v. City of Gulfport, 163 Miss. 334, 141 So. 288; Yazoo & M. V. R. Co. v. Aultman, 179 Miss. 109, 173 So. 280; Interstate Life & Accident Co. v. Cooley, 150 Miss. 502, 117 So. 267. This instruction was so applicable and Hunt had a right to have it submitted to the jury. No other instruction, granted or refused either party, dealt with the same situation.

Mrs. Sherrill was granted the instruction the reporter will set out in full in the margin. ^[1] Hunt contends this instruction is erroneous because (1) fraud cannot be shown by a mere preponderance of the evidence, as therein announced, but must be shown by proof which is clear and convincing, and (2) the instruction prescribed no measure of damage for the guidance of the jury, but "took the bridle off" and permitted the jury to run wild on that question. This was the only instruction Mrs. Sherrill obtained, or requested, other than one on the form of the verdict and a nine-juror instruction.

Dealing with the first contention, this Court, in a long line of decisions, has said that fraud must be shown by evidence which is clear and convincing. ^[2] In the Martin v. Gill case the Court stated that charges of fraud "* * * must be supported by proof which is clear and more convincing than a mere preponderance." [182 Miss. 810, 181 So. 850.]

But Hunt obtained an instruction telling the jury that fraud must be shown by clear and convincing evidence, and it is contended that this cured the error in Mrs. Sherrill's instruction. In Ellis v. Ellis, 160 Miss. 345, 134 So. 150, 153, which was a will contest on the ground of forgery, an instruction was granted the proponent "* * * to the effect that the introduction of the proceedings admitting the will to probate was prima facie evidence of its genuineness and validity, and that the burden of proof was on the contestant to prove by clear and convincing competent evidence that said will is a forgery," and an instruction granted the contestant "informed the jury that the probate of the will was only prima facie evidence of its genuineness, and the burden was on the appellee [proponent] to prove by a preponderance of the evidence that the signature thereto was the genuine signature of the testator." In response to the contention that the first cured the error in the second instruction the court said: "An erroneous instruction may be cured by one granted the opposite party which supplements, modifies, and clarifies the erroneous instruction, but it is not cured or corrected by one in conflict therewith. The two instructions referred to above are in sharp conflict as to the burden of proof upon the issue submitted to the jury, and they afforded the jury no safe guide in passing upon the conflicting evidence bearing upon the issue." See Jackson v. Leggett, 186 Miss. 123, 189 So. 180; Friedman v. Allen, 152 Miss. 377, 118 So. 828; May v. Culpepper, 177 Miss. 811, 172 So. 336; Nowell v. Henry, Miss., 12 So.2d 540. The instruction under consideration was erroneous, and the two cannot be reconciled, and were confusing and misleading to the jury.

It is unnecessary for us to pass on the second objection to this instruction.

Hunt further objects to this instruction because it permits the jury to base a verdict for Mrs. Sherrill upon his false statements of the "value" of the articles. He says such statements are mere opinions and not statements of fact supporting an action for fraud and deceit. Mrs. Sherrill says that this expression means to describe the quantity of the articles. On another trial the wording of the instruction will likely be changed in that regard, so that we deem it unnecessary to now decide these contentions.

Mrs. Sherrill took possession of the property about noon. That afternoon and the next day she made an inventory of the contents of the hotel. It is not clear from her testimony whether she set a price on the different articles, or classes, of property in that inventory. It did not include the buildings. Counsel for Hunt, on their cross-examination of Mrs. Sherrill, offered this inventory in evidence, and on objection of her counsel the court then denied permission to introduce it. This is assigned by Hunt as error. Whether competent or not the inventory was offered out of time. Hunt was not then introducing his evidence. The inventory is not in the record and we do not know just what it contains, and, therefore, cannot say whether it was competent had it been offered at the proper time. It was not error to deny its introduction under the circumstances.

Hunt next contends that the testimony of Mrs. Sherrill shows conclusively that in making the purchase she did not rely upon representations of Mr. Hunt as to the articles in question. She did make that statement in, and as a part of, one of her answers, but in several other places she stated that she did so rely. The question was submitted to the jury, and properly so, under this evidence. F. W. Woolworth Co. v. Freeman, 193 Miss. 838, 11 So.2d 447.

Lastly Hunt contends that this case should be reversed and judgment entered for him here because this was a sale of property as an entirety, no separate value or price being fixed upon any articles, class or part thereof, and that,...