Mobley v. Quattlebaum
| Decision Date | 10 April 1915 |
| Docket Number | 9064. |
| Citation | 85 S.E. 585,101 S.C. 221 |
| Parties | MOBLEY v. QUATTLEBAUM. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Richland County; George E Prince, Judge.
Suit for specific performance by John G. Mobley against E. G Quattlebaum. From a decree for defendant, complainant appeals. Reversed and remanded.
The decree of Judge Prince, in the lower court is as follows:
This is an action commenced by the plaintiff vendor against the defendant vendee, to enforce specific performance of a contract made on the 17th day of March, 1913, by which the plaintiff agreed to sell and convey to the defendant a lot containing one acre measuring 208 feet on each side, in the city of Columbia, at the southeast corner of Barnwell and Blanding streets, in the said city, at the price of $22,000 of which price the defendant was to pay $5.000 in cash upon the execution and delivery of the titles within 60 days after contract made, and was to give "bond and mortgage for $17,000 for three years at 6 per cent. from this date." Deed to be made and bond and mortgage to be given within 60 days from the date of the contract. The complaint sets out the contract in full, and there is no dispute as to its execution.
The defendant denies that the contract became operative and binding because of misrepresentations which entered into it. The contract itself provides that the plaintiff is "to convey the said property above described to the said E. G Quattlebaum, heirs, or assigns, in fee, by a proper deed with covenants of general warranty, with the dower duly renounced, free from incumbrances, except such as are herein agreed to be assumed." There is nothing in the contract and no allegation or proof showing, or tending to show, that there were to be any mortgages assumed.
The plaintiff alleges (paragraph 1) that he is the owner in fee simple of this land; and that (paragraph 4) he is ready and willing to perform the agreement on his part, and "stands ready to convey and let this defendant in possession of said premises," etc.; and that (paragraph 5) on the 15th of May, 1911, he "duly tendered to the defendant the deed for the premises pursuant to the agreement"; and that (paragraph 6) he "has duly performed all the conditions of the said agreement on his part." The defendant, in answer to the allegations of paragraph 1, as to the title of the plaintiff, says he has no knowledge sufficient to form a belief as to the truth thereof, and a similar answer is made in respect to the allegations of paragraph 4 as to the willingness of the plaintiff to perform his agreement. In answer to the allegations of paragraph 5 as to the tender of the deed, the defendant only admits tender of "some paper writing." But denies knowledge or information sufficient to form a belief as to the balance of the allegations in reference thereto; and in answer to the allegations of paragraph 6, that the plaintiff has performed his part of the agreement, defendant denies the same. The defendant, as a further answer, sets up misrepresentation by the plaintiff inducing him to enter into the contract and material to it.
The material representation relied upon by the defendant in his pleading and his proof consist of the statement contained in a paper writing, Exhibit Y, which was prepared by the plaintiff himself and furnished by him to his agent Keenan, for the purpose of being used "by Mr. Keenan to sell the property by," and it was prepared to "enhance the sale," in the language of the plaintiff himself. The statements contained in this paper and relied upon by the defendant are the following: Defendant alleges and offers testimony of himself and of the agents for plaintiff, showing that the paper writing containing these statements, prepared by the plaintiff himself, was offered by plaintiff's agents to the defendant before he entered into the contract sued on herein. The agents say that they believed the statements to be correct, and so represented them to plaintiff, and the defendant says that he relied upon them in making the contract. And there is much evidence offered by the defendant, tending to show that these three distinct representations would materially enhance and add to the value of the property in question. On the other hand, plaintiff seeks to limit the authority of his agent, and the scope and effect of this paper writing, claiming that it was only given to the agent as a matter of opinion, largely based upon rumor and hearsay, and that the agent had no authority to present or represent these statements as facts. And plaintiff also takes the position that defendant could have ascertained the truth of these statements by inquiry and diligence and ought not to have relied upon them.
Plaintiff also offers evidence to show that the statement as to the rents is true, and that the statement in regard to the removal of the railway shops is not material, and would not add materially to the value of the property because the land where the shops are situated might be put to other purposes which would also detract from the value of the property, and that defendant could have easily ascertained by inquiry from the city authorities as to whether paving ordinance had been passed. The evidence in the case shows that the defendant did not wait for 60 days to elapse, but had made his arrangements, and had made an agreement with the plaintiff, in consideration of a small discount, to carry out and comply with this contract, in the early part of April, 1913, and was ready and able at that time to do so. On the day fixed for compliance, the defendant, while coming into the city for the purpose of meeting an appointment to carry out the contract, first learned that the rentals actually being received for the property were materially different from that stated in the paper writing. He then called up the attorneys who were acting for both parties, and advised them of this fact, and that he must refuse to comply. He says that he then made further inquiries and ascertained that the other statements contained in this paper were not correct.
The defendant testifies that he went over with the plaintiff the rents on the property shortly before this, about the 4th or 5th of April, and plaintiff showed him that he was receiving $93 per month as rental. The evidence shows that the actual rental being received by plaintiff at the time this contract was made, as shown by his tenants, and his agent, Parker, was $75 per month; but plaintiff, while not materially questioning this, claims he was not getting the full rental value of the property, and that upon a fair estimate of its rental value, it was more than $95 per month.
Plaintiff admits, and the uncontradicted evidence shows, that no ordinance had been passed for the paving of this street, and that the paving of a street does materially enhance the value of property thereon. A petition had been circulated to the city council, asking for the paving of this street, and it had been largely signed. The evidence does not show whether it had enough signatures to warrant the passage of an ordinance for its paving. The evidence does show that the residents on a number of other streets had filed similar petitions, and that in the opinion of the street commissioner, who made recommendations and whose recommendations were usually acted upon, this street would not be the next one to be paved. The undisputed evidence also shows that the Southern Railway authorities had not decided to move the shops which are now situated in front of this residence. Plaintiff claims that he based his statement in this regard upon rumors, and offers evidence of such rumors. Each of these statements contained in the paper writing is a positive statement of an existing fact, and the plaintiff himself says it was made to enhance the value of the property and to sell it by.
As to the alleged limitations of the authority of the plaintiff's agents in making representations, in order to effect the sale of the land, the law, as we understand it, is that such limitations on the authority of the agents within the general scope of his duties, is not binding upon and does not affect a third party, in this case the defendant, unless such limitations are brought home to the knowledge of such party, and there is no evidence in the case tending to show knowledge on the part of the defendant of limitations of the authority of plaintiff's agents. Lowry v. Railroad Co., 92 S.C. 42, 43, 75 S.E. 278; Whaley v. Duncan, 47 S.C. 147, 25 S.E. 54; Hiller v. Bank, 96 S.C. 74, 79 S.E. 902. The court is of the opinion that the said statements are material; and, even if not material, it does not lie in the mouth of the plaintiff to say either that they are not material or that the defendant ought not to have believed or relied upon them. In the language of the Supreme Court of the United States in Claflin v. Ins. Co., 110 U.S. 95, 3 S.Ct. 507, 28 L.Ed. 76, "No one can be permitted to say in respect to his own statements upon a material matter, that he did not expect to be believed." Nat. Bk. v. Kershaw Oilmill, 202 F. 90, 120 C. C. A. 365.
It is not material, in our opinion, as to whether these statements were knowingly false, or made without any knowledge as to their truth or falsity or by mistake, for in any event the party making them is responsible therefor, and if they turn out to be false in fact, it is fraud in law. Claflin v....
To continue reading
Request your trial