Neely v. Rembert
| Citation | 71 S.W. 259 |
| Parties | NEELY et ux. v. REMBERT. |
| Decision Date | 06 December 1902 |
| Court | Supreme Court of Arkansas |
Rembert bought of J. C. Neely a plantation in Phillips county, Ark., paying him therefor $32,500. Of this $7,000 was paid in cash, and notes were executed for balance. Rembert brings this suit to rescind the purchase, alleging that he was induced to make it by reason of certain representations made by Neely as to the extent and quality of the land, which were false. Neely denies making any representations, and says that Rembert purchased on his own judgment after inspecting the land. Omitting unnecessary details, the facts are substantially as follows: Rembert was a planter. He had mules, implements, and laborers for farming on a somewhat extensive scale. It became necessary for him to leave the plantation in Mississippi which he had occupied during the year 1896, the same "having been rented from under him." He would sustain great financial loss unless he secured another plantation, and he had but a short time in which to secure it. Hearing that Neely had a plantation for sale, he approached him upon the subject, and acquainted him with the situation. Rembert was not personally acquainted with Neely, but from his reputation trusted him implicitly. He explained to Neely that he desired to purchase a plantation containing 1,200 or 1,500 acres of cleared land, and 1,500 or 2,000 more that were susceptible of being put in cultivation, so as to give him a plantation of 3,000 or 3,500 acres of tillable lands. Neely told him that he thought his Westover place would suit him, requested him to go down and look it over, and gave him a letter to the manager on the plantation, in which Neely requested the manager to furnish him (Rembert) a horse, and to show him the place; stating that Rembert would visit the place with the view of buying it. Rembert went down to the plantation, and was riding over the same with Cobb, Neely's manager, and, after having gone some distance, he (Rembert) discovered a patch of blank ground, covered with grass, whereupon he asked Cobb what that was, and Cobb replied, that it was "Louisiana cocoa." Thereupon he informed Cobb that he did not want to buy a place with cocoa on it, and proposed to return then and there, but upon the urgent request of Cobb went with him to look at a piece of woodland of about 320 acres, which Cobb represented as belonging to the place, and as being very fine land. He asked Cobb, upon the discovery of the cocoa, how much cocoa there was on the place, and Cobb told him that it was over that part of the farm, waving his hand in a certain direction. The part lying in that direction contained about 150 acres. Cobb did not mean that the cocoa was over the entire 150 acres, but he did not explain to Rembert that such was not his meaning, and Cobb did not know whether Rembert understood that the whole 150 acres was covered with cocoa or not. After the discovery of the cocoa, Rembert manifested no further interest in the inspection of the place, and made no further examination with the view of buying it. He went with Cobb to see the 320 acres of woodland, but this was not on the place, and the examination of this was at Cobb's request, and after he (Rembert) had given up the idea of buying the place, on account of the presence of cocoa. On his return to Mississippi he wrote Neely that he did not want the place, on account of the cocoa on it. A short while after this Rembert met Neely in Memphis, and in a conversation concerning the place Neely represented that Rembert was mistaken about the cocoa; that there was only 40 or 50 acres of it on the place, in one locality; that it could easily be confined, and was needed for pasture. Such is the substance of Rembert's testimony, and Neely himself on this point is shown by the record to have testified as follows: Neely executed a contract agreeing to convey Rembert 3,500 acres of land, "more or less." A short while after this the deed was executed, and it contained 3,078.05 acres. Neely says that he called Rembert's attention to the discrepancy between the written contract and the deed as to the number of acres. Rembert denies this, and says he did not read the deed, and was not advised of the difference in the number of acres in the contract and deed. The preponderance of the evidence is, perhaps, with Neely on this point. Neely represented that there were 1,100 or 1,200 acres in cultivation. There were 900 acres in cultivation, and 2,545 acres in the whole place, as shown by the survey. There was, therefore, a difference of 533 acres between the number of acres called for by the deed and the number of acres in the plantation delivered to Rembert, and a difference of 200 or 300 acres in the land actually cleared and in cultivation and that represented by Neely as being cleared and in cultivation. There was evidence tending to show that in the spring of 1897 and the winter of 1898 there were from 225 to 300 acres of cocoa grass in one body on the place, and that there were patches scattered about over nearly all the place. Cocoa grass is shown to have been exceedingly deleterious to farming lands. It grows and spreads rapidly, rendering the land beset with it very difficult to cultivate. Rembert had heard of its pernicious effects, but had never seen it before he saw it on the Westover place, and was not familiar with its effects or appearance. It was winter, and the grass at that season is not so easy of discovery as in the spring and summer, and especially so to one not familiar with it. Other facts will be stated, if necessary, in the opinion.
The...
To continue reading
Request your trial