McCain v. Cochran

Citation120 So. 823,153 Miss. 237
Decision Date28 January 1929
Docket Number26622
CourtUnited States State Supreme Court of Mississippi
PartiesMCCAIN et al. v. COCHRAN et al. [*]

Division A

Suggestion of Error Overruled March 25, 1929.

APPEAL from circuit court of Lauderdale county., HON. R. M BOURDEAUX, Judge.

Action by J. A. McCain and another against C. W. Cochran and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

Affirmed.

Neville & Stone, S. A. Witherspoon and Currie &amp Amis, for appellants.

The court erred in excluding the testimony of J. A. McCain with reference to the showing to himself and Herbert Arky after the purchase of the property by them of certain timber as timber acquired from C. W. Cochran, which timber was not in fact so acquired and did not in fact belong to them.

There would have been no doubt about the admissibility of this testimony under the pleadings had the wrong timber been exhibited to McCain and Arky prior to purchase. The only reason for this exclusion would be that the sale had been made and if, as a matter of fact, although the sale had been made, a large part of the purchase price was still owing, then the accomplishment of the purpose originally agreed upon had not been had, and any act or representation of West in carrying out that common purpose was, as we submit, competent as evidence against the defendants. That a co-conspirator is liable for any act or representation made by the others in the carrying out of the common purpose until the object of the conspiracy has been finally accomplished has been repeatedly held by the courts as has the rule that the wrongful act of one is the wrongful act of all.--Globe & Rutgers Fire Insurance Co. v. Firemen's Fund Insurance Co. et al., 97 Miss. 148; Gurney v. Tenney, 84 N.E. 428.

The court erred in allowing a certain telegram made an exhibit to the testimony of Herbert Arky, the telegram being from Colmer-Green Lumber Company, of date February 2, 1922, addressed to C. W. Cochran Lumber Company, and being as follows, to-wit:

"McLean, Miss. 9:00 A. M. Feb. 2, 1922.

"C. W. Cochran Lumber Company,

"Meridian, Mississippi.

"We will pay you one hundred fifty thousand dollars for your holdings in Wayne and Choctaw County all other provisions of the contract to apply wire what we may expect.

"COLMER-GREEN LUMBER COMPANY."

This telegram was sent four days after the offer made by the appellants on the night of the 27th had been accepted by Mr. Cochran, and at the time of its receipt Mr. Cochran was bound by a contract to the appellants and P. C. Hargrave for the sale by him to them of this proposition at and for the sum of one hundred forty-two thousand five hundred ($ 142,500) dollars. Its highly prejudicial effect on the appellants before the jury can be easily understood.

This telegram was certainly not admissible to show that the timber was there nor was it admissible to show that the earning power of the railroad was as represented, or as to the value of the proposition or on any other issue of fact raised in the pleadings in this cause. No citation of authority is necessary to show that an offer made by some third person is inadmissible in a suit of this nature after the closing of a deal on which the suit is based as to the value of the proposition purchased, or as to the representations made. If that were not true, then any person could defraud another and when sued by the person defrauded have conveniently on hand third persons who had made offers equal to or in excess of the offer made by the person defrauded and suing.

The court at first refused to admit this telegram, but thereafter decided to admit it. Its admission was objected to by the appellants and exception taken. The court evidently admitted the telegram because of certain testimony theretofore given by Herbert Arky, one of the appellants, with reference to it. The record discloses with reference to this telegram that the appellants on the examination of Mr. Rothenberg from whom it was sworn by Arky he received this telegram between the dates of January 28th and February 6th, at the store of Marks-Rothenberg Company, questioned Mr. Rothenberg as to how the telegram came into his possession and as to his giving it to Mr. Arky. It was not offered in evidence by the appellants.

Under no theory do we see how the telegram could have been admissible. It was not contradictory of anything Arky had sworn to with reference to it, because in his examination by Senator Brooks he had stated that Colmer-Green had offered one hundred fifty thousand dollars and reference had been made to some contract which he had not seen and about which he did not know. It was not contradictory of Arky's statement that Mr. Rothenberg had given him the telegram because Mr. Rothenberg denied that. The telegram would not have affected the testimony either of Rothenberg or Arky on that question.

The court erred in refusing appellants' instructions for punitive damages. These instructions requested the allowance of punitive damages, in the event that the defendants, and each of them knowingly, wilfully, fraudulently, maliciously and deceitfully, or in utter and reckless disregard of the rights of the plaintiff, stated to the plaintiff, and each of them, as facts, there were thirty-two million feet of timber on the Cochran tract and that the Washington & Choctaw Railroad earned one thousand dollars per month when the sawmill was in operation, for the purpose of inducing the plaintiffs to purchase such proposition, and on which statements the plaintiffs relied and were induced thereby to purchase it.

It is true that in this case the jury allowed no actual damages, but we think the trial court was clearly in error in refusing to grant these instructions. It will be remembered that the plaintiffs' testimony showed a common motive on the part of Cochran and Rothenberg for a sale of this timber and such a joinder of efforts as to leave a legitimate inference, if the jury believe the plaintiffs' testimony, of a conspiracy between them to sell this property to the plaintiffs. In the event there was a conspiracy and the statements made were false, and knowingly false, then as we submit, there could have been no question about the plaintiffs being entitled to these instructions. See 4 Sutherland on Damages, 4432; 27 C. J. 104, par. 265; Wheatcraft v. Meyers, 107 N.E. 81; Laughlin v. Hopkinson, 126 N.E. 592; Intermountain Lumber Co. v. Rodesky, 227 P. 564.

The first instruction granted to the defendants by the court, which we desire to discuss is in part, as follows: "But the law is that false representations and deceit must be established by testimony that is clear and convincing. The burden is upon the plaintiffs in this case to establish to the satisfaction of the jury by a preponderance of the testimony and by testimony that is clear and convincing that the defendants made to the plaintiffs representations, etc."

There is no explanation as to how clear or convincing the testimony must be. The jury was first told that the burden was on the plaintiffs to establish their case by a preponderance of the testimony and to the satisfaction of the jury which, as we submit, was the only burden that could be placed on these plaintiffs, or any other plaintiffs in a civil action; and then the instruction goes on to say not in the alternative but that in addition to proving this case to the satisfaction of the jury by a preponderance of the testimony, the plaintiffs must also prove it by testimony, clear and convincing. How clear and how convincing? The jury was left without any guide at all as to how clear or convincing the testimony must be. In addition to being unnecessary and of placing a burden on them not provided for by law, as we understand the rule in Mississippi, it left to the imagination of the jury and to their own ideas just how clear and how convincing the evidence might be. The evidence might have satisfied the minds of the jury and might have met the burden on the plaintiffs of the preponderance of the testimony. However, the jury may have concluded that not only must the testimony satisfy us but that in addition it must be convincing to them beyond any reasonable doubt.

This language in the instruction, taken with the other language that men are presumed to be fair and honest and that the law does not lightly impute fraud, might very easily have led and in all probability did lead the jurors to conclude that the burden of proof in this case must be much stronger than is usual in civil cases, and must approach that degree of satisfaction in the minds of the jury required in cases where one was being tried for crime.

There is no way to calculate how damaging the effect of this language may have been, placed as it was in this instruction, and taken in conjunction with the other language, upon the minds of the jurors in this case. We submit that the rule in Mississippi does not require clear and convincing proof and, as a matter of fact, the rules in a majority of the jurisdictions in this country require nothing more in a case of fraud than that the plaintiff establish his case by a preponderance of the testimony. An action of deceit is nothing more or less than a civil action. It is true that some of the courts have held that the evidence must be clear and convincting; some that it must be clear proof, and other expressions of like nature. However, as we submit, on examination of the authorities, a majority of the courts only hold that the plaintiffs must establish their cause, as in any other civil case, by a preponderance of the testimony. 27 C. J. 62; 12 R. C. L. 438.

We have carefully examined the holdings of the various courts on this question, and we find a hopeless conflict in the decisions from the various...

To continue reading

Request your trial
32 cases
  • Truckers Exchange Bank v. Conroy
    • United States
    • United States State Supreme Court of Mississippi
    • December 23, 1940
    ...Dowling v. White Lbr. & Supply Co., 154 So. 703, 170 Miss. 267; N.Y.Life Ins. Co. v. Gill, 182 So. 109, 182. Miss. 815; McCain v. Cockran, 153 Miss. 237, 120 So. 823; Simonton v. Los Angeles Trust & Savings Bank, Pa. 672, 27 C. J. 44; Drawn v. New Amsterdam Casualty Co., 175 Cal. 21, 165 P.......
  • Citizens Nat. Bank of Meridian v. Golden
    • United States
    • United States State Supreme Court of Mississippi
    • March 23, 1936
    ...... sec. 182; 2 Jones' commentaries on Evidence (2d), page. 1151, sees. 618, 619; Castle v. Bullard, 23 How. (64. U. S.) 172, 16 L.Ed. 424; McCain v. Cochran, 120 So. 823, 153 Miss. 237; Jacks v. Bridewell, 51. Miss. 881; Waller v. Shannon, 53 Miss. 500; Holmes v. Lemon, 15 So. 141. . ......
  • Mississippi Power Co. v. May
    • United States
    • United States State Supreme Court of Mississippi
    • June 3, 1935
    ...1087, par. 25, page 1093, sec. 26, and page 1095; 51 A.L.R., pages 63 to 67; Restatement of Law of Contracts, sec. 473; McCain v. Cochran, 120 So. 823, 153 Miss. 237; Rogers v. Harris, 76 Okla. 215, 184 P. 459; 12 R. C. L., page 261. No authority can be found applying to fraud predicated up......
  • Miss. Power Co. v. May
    • United States
    • United States State Supreme Court of Mississippi
    • April 29, 1935
    ...1087, par. 25, page 1093, sec. 26, and page 1095; 51 A. L. R., pages 63 to 67; Restatement of Law of Contracts, sec. 473; McCain v. Cochran, 120 So. 823, 153 Miss. 237; Rogers v. Harris, 76 Okla. 215, 184 P. 459; 12 R. C. L., 261. No authority can be found applying to fraud predicated upon ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT