Mcbee v. Deusenberry, (No. 5178.)

• Court: Supreme Court of West Virginia
• Writing for the Court: WOODS
• Citation: 128 S.E. 378
• Parties: McBEE. v. DEUSENBERRY.
• Docket Number: (No. 5178.)
• Decision Date: 19 May 1925

128 S.E. 378

McBEE.
v.
DEUSENBERRY.

(No. 5178.)

Supreme Court of Appeals of West Virginia.

May 19, 1925.

(Syllabus by the Court.)[128 S.E. 379]

Appeal from Circuit Court, Monongalia County.

Suit by T. Jud McBee against S. S. Deusenberry. From decree for plaintiff, defendant appeals. Affirmed.

Terence D. Stewart, of Morgantown, for appellant.

Frank Cox, of Morgantown, for appellee.

WOODS, J. T. Jud McBee instituted bis suit in the circuit court of Monongalia county, praying for the rescission and cancellation of a certain deed for coal lands, on the ground of fraud. From a decree granting the relief prayed for, Deusenberry, the defendant, appeals.

The plaintiff alleged in his bill that S. S. Deusenberry and J. M. Deffenbaugh obtained title to a certain seam of coal in Preston county, by deed bearing date of August 18, 1920; that there had existed for a number of years an intimate and close friendship between Deusenberry and plaintiff, and that said Deusenberry had previously told plaintiff that he was trading in real estate and coal lands, and, if he obtained anything that he thought good, he would take plaintiff in on the "ground floor, " as he would like to see plaintiff make some money since his return from the war; that Deusenberry approached the plaintiff on August 22, 1920, for the purpose of selling him one-half of his interest, or a one-fourth in the coal above mentioned, and that he represented to the plaintiff that he would sell said one-fourth at exactly what he had paid for it—representing that he had paid about $400 an acre; that plaintiff had no general knowledge of the coal business, and was unacquainted and without knowledge of the coal in question, its character, availability, and value; that plaintiff had implicit confidence in defendant's integrity and judgment, and, knowing him to be a man of large experience in buying and selling real estate and coal properties, believed that he would be justified in investing or purchasing said one-fourth interest in said coal and mining rights and privileges; that, relying upon said representations as to price, plaintiff agreed to pay the defendant $6,500; that he paid $1,625 down, and gave his three several notes in like amounts, payable in 1, 2, and 3 years, respectively, in payment therefor; that defendant executed a deed to plaintiff for the said one-fourth interest on August 23, 1920; that plaintiff had paid the first of said notes; that he later found that the coal was of less value than he had paid for it; that in fact through defendant's representations he had paid twice the amount that defendant had paid for it; that defendant's statements were false, fraudulent, and untrue; that defendant made the representations for the purpose of inducing plaintiff to purchase, and that plaintiff relied on said representations; that the plaintiff did not discover that said representations were false, fraudulent, and untrue until shortly before the institution of this suit; that he is willing to return the property if defendant will return the purchase money already paid and deliver up the remaining two unpaid notes; and in the prayer asked that the said deed of August 23, 1920, be canceled and rescinded, and that the purchase money already paid by plaintiff be returned to him, with interest, and that the two unpaid purchase-money notes for $1,625 each be returned to him, and for general relief.

The defendant filed an answer denying all the allegations in the bill in relation to any and all false and fraudulent transactions, statements, and acts, in relation to the transaction, to which answer plaintiff replied generally, and, on the issue thereon joined, proof was taken by both plaintiff and defendant.

The bill alleges every essential element necessary to set aside a transaction based on false and fraudulent representation. (1) It alleges that the representation was made; (2) that it was made in relation to a fact existing; (3) that the representation was false; (4) that the representation was material; (5) that the plaintiff relied on such representation and was induced thereby to purchase; and (6) that without such representation the plaintiff would not have purchased. The demurrer was properly overruled. Wilt v. Crim, 87 W. Va. 627, 105 S. E. 812; Wamsley v. Currence, 25 W. Va. 543; Crislip v. Cain, 19 W. Va. 438; Allen v. Yeater, 17 W. Va. 128; Pomeroy's Eq. Jur. § 910.

As tersely stated by the appellant in his brief, the whole case rests on the question of whether or not appellant did make false and fraudulent representations to appellee to induce him to purchase the interest in the coal and mining rights in question, conveyed by the deed of which cancellation is sought.

McBee says that Deusenberry told him that he was selling him...