Kincaid v. Price

• Decision Date: 18 February 1907
• Parties: KINCAID v. PRICE
• Court: Arkansas Supreme Court

100 S.W. 76

82 Ark. 20

KINCAID v. PRICE

Supreme Court of Arkansas

February 18, 1907

Appeal from Arkansas Chancery Court; John M. Elliott, Chancellor affirmed.

Judgment affirmed.

John L Ingram and John F. Park, for appellants.

1. Where a vendee has been induced to purchase a section of land relying upon the representations of the vendor and his agent that there was not over forty acres of the land in timber and that six hundred acres of it was prarie land susceptible of being mowed for hay, and it develops afterwards that these representations were untrue, and that there was 144 acres of the land in timber, and not over 350 acres of "mow" land, the vendee is entitled to a rescission of the contract of purchase and to judgment for the part payment already made. 30 Ark. 687; 32 Ark. 326; 47 Ark. 339; 22 N.E. 744; 9 S.W. 867; 13 S.W. 755; 37 N.W. 497; 30 Ark. 540.

2. The burden was on appellee to show that appellants did not rely upon the representations made to them by appellee and his agent. Ewart on Estoppel by Misrepresentation, 145.

Pettit & Pettit, for appellee.

1. Rescission must fail. There is no tender of possession, or of reconveyance or release. 17 Ark. 607; Id. 229.

2. It is an executed contract, consummated by delivery of deed and surrender of possession. There is no allegation of inadequate remedy at law. 18 Enc. of Pl. & Pr. 806

3. To justify a rescission of the contract on the allegation of fraud, the proof must be clear and satisfactory. 20 Cyc. 120; 39 S.W. 881; 23 Ark. 176; 11 Ark. 378.

4. Having personally inspected the land, and having had opportunity to inform themselves as to the amount of timber land in the tract, appellants had no right to rely upon representations of appellee in this respect. 30 Ark. 187; Id. 691; 26 Ark. 31; 27 Ark. 245; 16 Ark. 118; 19 Ark. 522; 46 Ark. 337; 11 Ark. 66; 30 Ia. 298; 1 Ark. 41; 6 Ark. 513; 45 N.E. 580.

5. To avoid a contract, the misrepresentation must be knowingly and fraudulently made concerning some material fact. An honest opinion, though erroneous, affords no ground for rescission. 125 U.S. 247; 19 Ark. 522; 31 Ark. 170; 46 Ark. 337.

6. Fraud and material injury must concur, and the injury must be of such character that a recovery of damages will not afford relief, before equity will intervene to grant relief. 27 Ark 50; 46 Ark. 337; 12 Ark. 296; 26 Ark. 30; 43 Ark. 462, and other authorities, supra. Speculative damages will not be awarded. Supra.

John L. Ingram and John F. Park, for appellant in reply.

In this case, the vendor having a better opportunity than the vendees to know the facts regarding the land, if he innocently misrepresented them, and the vendees, relying on his representations, were induced to buy, the latter may, if other circumstances justify it, rescind the contract, though the vendor was not guilty of positive fraud. 9 S.W. 867. The seller is bound to know that the representations he makes to induce the sale are true. 73 N.W. 560; 1 Page on Contracts, § 153. See, also, 71 Ark. 98.

OPINION

RIDDICK, J.

This is a suit in equity to rescind a contract for the sale of a section of land in Prairie County, Arkansas. W. M. Price, Jr., of Stuttgart, Arkansas, sold this land to John A. and Ella S. Kincaid of Springfield, Illinois, for the sum of thirty-five dollars per acre, amounting in all to $ 22,400. Kincaid and his wife, Ella S. Kincaid, thereupon executed two notes for the purchase price, one for $ 2,400 to be paid in sixty days, the other for $ 20,000 to be paid in six months. Price executed a deed for the land. The sixty-day note was delivered to Price, and the other note and deed was deposited with the German-American Bank at Stuttgart under a written agreement and instructions from the parties to deliver the deed to the vendees upon the payment of the notes, but if the notes were not paid at maturity to deliver the note to Price and hold the deed until the notes were paid in full.

The first note was transferred by Price, and was paid at maturity, but the vendees failed to pay the second note, and in July following brought this action to rescind the contract on the ground that they were induced to purchase the land by false and fraudulent representations of the defendant, Price, to the effect that there were only fifty acres of timber on the land, the remainder being prairie; that the market price of hay had never been less than $ 6.50 per ton; that the railroad grade and bed running through the land had been constructed but a short time, and that the ties and steel would be laid shortly, that the land belonged to Price, and that its market value was $ 35 per acre. Plaintiffs state that they relied upon all of these statements, but that they proved to be untrue.

The defendant filed an answer, denying that he had been guilty of any misrepresentations and alleging that he had faithfully performed his contract and had delivered to the bank a deed conveying the land as required by his contract to be delivered upon the payment of the notes. In conclusion, he asked that the complaint be dismissed for want of equity, and that he have judgment for the amount of the unpaid note. On the hearing the chancellor found in favor of the defendant, rendered a decree accordingly, and the plaintiff appealed.

1. It is not shown that the land did not belong to Price, or that his representation that it was worth $ 35 per acre was anything more than the usual puffing that the law permits the seller to indulge in, for the question of the market value of land is such an uncertain one that this statement must be regarded as nothing more than a mere expression of opinion, upon which the buyer relied at his own risk. Jennings v. Broughton, 17 Beav. 234; 2 Pomeroy, Equity, § 891.

2. The charge that the defendant falsely represented that a railroad would shortly be constructed across the tract can not be sustained, for the contract read in evidence shows that the defendant sold the right of way of this contemplated railroad, but expressly stipulated that if he should not be able to give a good title thereto the vendees should be allowed a rebate of $ 35 per acre for the land taken up by the right of way. It does not seem reasonable to believe that this stipulation would have been made about a right of way of a railway that was to be soon constructed. On the contrary, it indicates that there was an understanding that this right of way had been abandoned by the railway company and that the defendants claimed to be the owners thereof.

3. The market price of hay is a matter of such general information that the statement alleged to have been made in reference thereto...