Morris v. Morris

• Citation: 20 S.E. 506,95 Ga. 535
• Parties: MORRIS . v. MORRIS.
• Decision Date: 20 November 1894
• Court: Supreme Court of Georgia

20 S.E. 506

95 Ga. 535

MORRIS .

v.MORRIS.

Supreme Court of Georgia.

Nov. 20, 1894.

Deceit—Evidence.

This being an action of deceit, and there having been no misrepresentations upon the part of the defendant to induce the plaintiff to enter into the contract in question, and no misplaced confidence upon the part of the plaintiff, and it appearing that, although the parties were brothers, they dealt each with the other at arm's length, acting each upon his own judgment, and the transaction being otherwise free from fraud, there was no error in granting a nonsuit.

(Syllabus by the Court.)

Error from city court of Atlanta; Howard Van Epps, Judge.

Action by Samuel E. Morris against John F. Morris. From a judgment of nonsuit, plaintiff brings error. Affirmed.

The following is the official report:

S. E. Morris by his petition alleged that his brother, John P. Morris, had damaged him $5,000, as follows: Their father, C. C. Morris, left a large estate, part of which consisted of two pieces of realty in the city of Atlanta, a house and lot on Walker street, and a storehouse on the northeast corner of Broad and Hunter streets. Defendant, by reason of his business qualifications, and being a resident of Atlanta, has had the management of said property, and plaintiff, being a resident of Douglas county, knew nothing as to its value. In September, 1890, defendant approached plaintiff, and offered to trade him a farm in Douglas county for his interest in the property above mentioned. His interest in the two pieces was four-fifteenths, and the value, as placed on it by defendant, was $2,000 for one and $16,000 for the other. He told plaintiff that the property was only given in at $12,000, and that the price he put on it was its full market value; also, that the farm consisted of 362 1/2 acres. Plaintiff had all confidence in his brother, and no reason to doubt his statement as to said value or number of acres; and being a farmer, and having no use for the Atlanta property, he accepted defendant's offer, and accordingly made the trade on September 26, 1890. The consideration expressed in the deed from him to defendant is $6,000, but plaintiff's interest in the Atlanta property was estimated in said trade at $4,800, of which $533.33 was represented by his interest in the Walker street lot, and $4,266.67 by his interest in the Broad street lot; the sum of $6,000 being inserted as a consideration, not because it was really so, but only upon the suggestion of defendant, and to accommodate him. About a year after the trade, plaintiff learned that defendant, at the time of the trade, had bargained the storehouse to John Ryan, Jr., for $30,000, and his purpose was to buy up plaintiff's interest as cheaply as possible, and thereby defraud him out of several thousand dollars, and in this way did defraud him out of $3,733, this sum being the difference between the amount at which plaintiff's interest in the Broad street lot was valued, and the sum at which it was sold. The representations made by defendant as to the value of the storehouse, and as to the number of acres of land, were false and fraudulent, and made for the purpose of deceiving plaintiff, and did deceive him, he believing them to be true, and acting thereon. He has had the farm surveyed, and it turns out to be only 322 acres, —a shortage of 40 acres, —the value of which at the price at which plaintiff took it, being $664. C. C. Morris died testate in May, 1881, owning the two pieces of city realty previously described, which by his will were devised equally, share and share alike, to plaintiff, defendant, Edward M. Morris, Adaline E. Defoor, and Hubbard N. Morris. Subsequently, plaintiff, defendant and James A. Defoor purchased jointly the interest of H. N. Morris in said store property, by which purchase plaintiff became the owner of an interest equal to four-fifteenths of the same. Defendant was nominated in the will as one of the executors thereof, qualified as such, and had full control and management of said property in such character up to the date of the transaction between him and plaintiff, having rented the property, collected the rents, and paid the taxes thereon, and in every particular treated the same as a part of the estate of testator in process of administration. Said property, at the time of exchange, constituted a part of the undistributed estate of testator, and was under defendant's control and management as executor. At the close of the evidence for the plaintiff, the court granted a nonsuit, which ruling is assigned as error.

Plaintiff testified: "Defendant is my brother. Our father was C. C. Morris. In 1890 I lived in Douglasville. Have lived in Douglas county eight or nine years. I once lived in Atlanta. Removed from there in June, 1887, and have not lived here since. I had no control over the property described in my declaration, as to collecting rents, giving it in for taxes, or anything of the sort. I knew nothing of its market value in 1890, except what my brother told me. We finally traded. I cannot state exactly when the negotiations between us began. I came to Atlanta from three to six times a year; and, probably a year before we traded, I would come here, and he would get after me. He wanted to trade me his property on the river. He said his health was so that he could not attend to it, and I had some property close to it, and he said he thought it would suit me better than it would him; and I suppose we were talking about the trade about a year. We had three or four different conversations relative to it. It was consummated on September 26, 1890, at Douglasville, no one being present but him and me. He met mo going to supper, and on the way to my house we made the trade. The deed was drawn that night in the office of Roberts. I had no notice of my brother's intention to be there on that occasion. He came on the train about two o'clock in the afternoon. I met him on the street just after the train arrived. He went out to my mother's, a quarter or half mile from the courthouse. I do not remember whether I or my son went after him in my wagon, but he came back to my office, and after supper we walked up town. He stated that his Douglasville property would suit me better than the store property; that he was not able to attend to it; that I had a little property there, and could attend to it, and he would figure his property down there for my interest up here; but he thought his property there was worth more than my interest here, and asked me $500 boot, and stated to me that the property here was assessed at $12,000 by competent men. I toldhim I thought the property was worth $16,000. He thought not, and kept on after me to give him boot, and I would not do it. Then he offered to swap if 1 would give to boot the horse he rode behind that evening, and I would not do that; and after a while he told me it was a trade. We valued the property on the corner of Broad and Hunter streets at $16,000, and the house and lot on Walker street at $2,000, and I just gave him my interest in that property, counting it at that value; he claiming at the time that he was giving me $4,000 more than the property was worth, figuring on the assessment then at $16,000. He said that was its full value, and more too. I had no knowledge of the market value of this property. I had never asked anyone what it was worth. What induced me to make this trade was, I thought I was getting the full value of my property here, and the property down there was worth fully as much as the property here. I thought I knew what the property was worth down there. I had land there in three or four miles of it, and I thought he was telling me what the property was worth here. The reason he gave for being in Douglasville that evening was that he had not started there. He said he had started to Austell to see Mr. Brockman, and decided, as he had got that far, that he would come on and see myself and mother. On that occasion he had all the deeds to this property in Atlanta; and, after this matter was consummated, he and I returned to my house, and he spent the night, and left next morning. He did not tell me anything about any negotiations pending between him and anybody else relative to this piece of property. It was something like a year before I ascertained that he had disposed of it. I went to his house and asked him about the trade, and told him he could have his land back, or just to let me have half of the money he got, that my interest brought in the property, and he refused to do it. He said it was a fair trade, and that he thought he was entitled to it. I do not know that he told me what he got for it. In the negotiations when the trade was made, he said the country property was worth more than this. He claimed that our father gave $7,000 for it, and he thought it was still worth that I told him I did not think so; that there had been freshets; it had been...