Markowsky v. Rubenstein

• Decision Date: 07 March 1921
• Docket Number: 21568
• Citation: 87 So. 278,124 Miss. 724
• Court: Mississippi Supreme Court
• Parties: MARKOWSKY v. RUBENSTEIN ET AL

87 So. 278

124 Miss. 724

MARKOWSKY v. RUBENSTEIN ET AL

No. 21568

Supreme Court of Mississippi

March 7, 1921

FRAUD. Instruction inapplicable to issue.

In an action of fraud and deceit the defendant, under a plea of general issue, is not entitled to an instruction advising the jury that the plaintiff was not entitled to a verdict, until he proved to the satisfaction of the jury that the contract sued on was not only false, but that the defendant knew it was false at the time it was made, when the defendant testified that he had not made the alleged contract at all.

HON. R S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Suit by Gust Markowsky against L. Rubenstein and another. Decree for defendants, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Tally &amp Mayson, for appellant.

T Webber Wilson and N.C. Hill, for appellees.

No brief found in the record for counsel of either side.

OPINION

SAM C. COOK, P. J.

The appellant in this case began this suit in the circuit court of Forrest county. Omitting the formal parts the declaration was as follows:

"The said plaintiff complains of the defendants, L. Rubenstein and Harry Shor, partners in business and negotiating in trade under the firm name and style the Globe Dry Goods Store in an action of deceit, for that whereas heretofore, to wit: On or about the 1st day of February, 1920, said defendants were then, and had for a long time prior thereto been, conducting a general dry goods store in a certain building on Front street owned by Capt. J. P. Carter. That the said plaintiff was at and before that time engaged in buying and selling automobiles, conducting said business under the name, style and designation of Mississippi Automobile Company, and for the conduction of such business had leased that building situated at 215 West Pine street. That the said defendants had leased the building on Front street from Capt. J. P. Carter for quite a long time, the unexpired part of lease had fifteen months to run from March 1, 1920. That the said defendants, being desirous of closing out their said business on Front street, approached the said plaintiff with the view of getting him to take over said building and the unexpired lease thereof, which said plaintiff agreed to do, provided it was satisfactory with the landlord. That thereupon plaintiff and defendants interviewed Capt. J. P. Carter, the landlord, who expressed willingness, and since that time expressed a thorough willingness, for plaintiff to occupy said building as his tenant, it having been agreed between plaintiff and defendants and the landlord that plaintiff should become tenant of said premises on the 1st day of March, 1920, for defendant's unexpired lease of 15 months. Beginning said date, plaintiff thereupon surrendered his place and premises in which he was doing business on West Pine street, put cards of notice in the windows of the building and in the building on Front street, to the effect that on March 1, 1920, he would be doing business in the Globe Dry Goods Store on said Front street. The plaintiffs' landlord on Pine street immediately rented said premises to other parties for business purposes. That on the 21st day of February, 1920, plaintiff learned from another source that defendants had sold and transferred the unexpired portion of their lease on said building on said Front street to other parties, and that on or about the date aforesaid the said third parties moved into said building, and are now in the exclusive occupancy and control.

"Plaintiff avers that the defendants misled, deceived, tricked overreached, ensnared, and entrapped the plaintiff into making said contract with him to plaintiff's great damages; that at the time the arrangement was made amongst the parties whereby plaintiff was to take over said building he suggested then and there that the terms of the agreement be embraced in a writing, but that the defendants said it was not necessary, for the reason that they would consummate the agreement when the time came...