Mcdaniel v. Hodges

• Decision Date: 25 November 1940
• Citation: 11 S.E.2d 623
• Court: Virginia Supreme Court
• Parties: McDANIEL. v. HODGES.

11 S.E.2d 623

McDANIEL.

v.HODGES.

Supreme Court of Appeals of Virginia.

Nov. 25, 1940.

Rehearing Denied Jan. 14, 1941.

Appeal from Circuit Court, Orange County; Alexander T. Browning, Judge.

Suit by E. A. Hodges against W. S. McDaniel for rescission of a contract of sale of realty alleged to have been entered into in reliance upon false and fraudulent material representations of defendant's agent.From a decree for plaintiff, the defendant appeals.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, GREGORY, EGGLESTON, and SPRATLEY, JJ.

Burnett Miller, Sr., of Culpeper, for appellant.

A. Plunket Beirne, of Orange, for appellee.

SPRATLEY, Justice.

This proceeding was instituted by E. A. Hodges against W. S. McDaniel for the recission of a contract of sale of real estate, alleged to have been entered into in reliance upon false and fraudulent material representations of an agent of McDaniel.The defendant, McDaniel, demurred to the bill of complaint and filed an answer denying its allegations.The demurrer was overruled.The evidence was heard ore tenus before the trial judge.A decree was entered granting the relief prayed for, and the defendant has appealed.

There are few questions of law involved.A proper decision depends upon a determination of the facts.The evidence will, therefore, be set out in some detail, although it will be necessarily stated from the standpoint most favorable to the plaintiff, Hodges, in view of the holding of the learned chancellor, who saw and heard the witnesses testify.

Hodges, a resident of West Virginia, went to the office of B. E. Wheeler, a real estate broker at Charlottesville, Virginia, to consult him about buying a farm.Wheeler told him he had for sale a farm of about thirty-five acres, belonging to W. S. McDaniel, near Barboursville, in Orange county.Wheeler represented the property as "mostly clear land, fairly good house with some repairs, and a good well of water right at the house."

Hodges, Helen Dye, his young housekeeper, and another person, went with Wheeler to inspect the property.After going through the interior of the house, they went to the well at its back.Hodgeslooked down the well and, not seeing any water, picked up a little rock and dropped it in the well.Not hearing it hit any water, he said to Wheeler, "Is there any water in this well?"Wheeler replied, "All it needs is cleaning out.I have been here and drunk out of it."Helen Dye corroborated this and testified Mr. Wheeler said in addition, "It is a good well of water here."

The well had a platform on it, a well house with a roof over it, and a door on top of the well house.The true condition of the well was not apparent to ordinary observation.

Wheeler then told Hodges that there was a spring on the property that he could use until he got the well cleaned out.Hodges and several disinterested persons testified that no such spring or other source of water whatever was located on the property.

Hodges testified he would not have bought the property if he had known the true condition of the well; but that he did agree to purchase it, relying wholly on the representations of the agent, Wheeler, that it was a good well and could be cleaned out.

On January 8, 1937, upon receipt of a deed, he paid to McDaniel $400, in cash, and gave six notes of $100 each, secured by a deed of trust on the property, for the remaining portion of the purchase price.

Hodges says that if the representations of Wheeler had been true he was both willing and able to pay the deferred installments.He expended, in labor and materials, $200 in improvements on the farm.

Within a week after moving on the property, water being essential to its full enjoyment, Hodges attempted to get some one to clean the well.This and several subsequent attempts to obtain workmen for that purpose were futile, due to certain and peculiar dangers inherent to that particular well because of the condition and the nature of the surrounding ground.

In June, 1938, Hodges was informed of the actual condition of the well by a former occupant of the premises.The well, originally 60 feet deep, had, some years prior to the sale, caved in to a depth of about 40 feet and had been entirely worthless ever since.Immediately upon learning this, Hodges made a complaint to Wheeler, who promised to see about it.Nothing having been done, he wrote to Wheeler and later went to see him in November, 1938.Again Wheeler made promises which were not fulfilled.Hodges, in the same month, also wrote to McDaniel; but the latter ignored the complaint in his reply to the letter.

In the meanwhile, Hodges and his family had been forced to get water from a neighbor's spring 254 steps distant, none other being available.

On March 28, 1939, not having secured relief, he filed his bill in equity asking for the recission of the contract and a return of the $400 paid thereon.

The evidence discloses that the worthless condition of the well was definitely known to Wheeler prior to the sale to Hodges.He had told a former tenant to keep quiet about the well when prospective purchasers came to the property, or, at least, to tell them that the well was alright and simply needed cleaning out.Another prospective purchaser had told Wheeler that he would not purchase the property "because the bottom has fallen out of. the well."

McDaniel knew nothing of the representations made by his agent.Wheeler did not inform him of the complaint of Hodges about the lack of a good well.

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