Parker v. Johnston, 5--4454
| Decision Date | 18 March 1968 |
| Docket Number | No. 5--4454,5--4454 |
| Citation | 244 Ark. 355,426 S.W.2d 155 |
| Parties | , 5 UCC Rep.Serv. 369 Lee PARKER, Appellant, v. Fred JOHNSTON, Appellee. |
| Court | Arkansas Supreme Court |
McMillen, Teague, Bramhall & Davis, by Jeff Davis, Jr., Little Rock, for appellant.
Reed & Blackburn, Heber Springs, for appellee.
In October, 1965, Johnston sold to Parker a vending-machine business that Johnston had been operating in Cleburne county. The purchaser made a down payment of $20,000 and executed a monthly-installment note and security agreement for the unpaid balance of $22,000. Within about six months Parker refused to make any further payments on the debt. Johnston brought this foreclosure suit to enforce the contract. By counterclaim Parker asked for rescission and consequential damages. This appeal is from a decree granting relief to Johnston and rejecting Parker's counterclaim.
We can materially compress our discussion of the issues by explaining at the outset the posture of the case as it reaches us. At the trial Johnston rested after having made a prima facie case by introducing the note and security agreement and proving the amount due. Parker then introduced a great deal of testimony to establish his right to a rescission, for fraud. At that point counsel for the plaintiff asked that the counterclaim be dismissed, 'because they have not established, by any clear, convincing proof, any misrepresentation of a material fact, any right to rely * * *.' The chancellor, over the defendant's objections, sustained the motion to dismiss the counterclaim, which ended the trial.
As the case now stands our discussion of the issues must be prefaced by two observations. First, fraud such as that asserted by Parker need not be established by clear and convincing evidence; a preponderance of the proof suffices. That point was fully discussed and settled beyond any possibility of doubt in Clay v. Brand, 236 Ark. 236, 365 S.W.2d 256 (1963). Secondly, under our decision in Carrick v. Gorman, 232 Ark. 729, 340 S.W.2d 377 (1960), the plaintiff, at the stage of the case that was reached below, is not entitled to test the counterclaimant's proof by a demurrer to evidence. Such an attempt, when sustained by the chancellor, waives the plaintiff's right to adduce additional proof and brings the case to us for final trial de novo on the record made below. Hence in the case at bar Parker's proof, except for its own inherent weaknesses or contradictions, is substantially undisputed.
In September of 1965 Parker, a resident of California, came to Arkansas to visit a wartime friend and look for a ranch near Heber Springs, where excellent hunting and fishing are to be had. The real estate agents that Parker consulted did not have a suitable ranch for sale, but they interested Parker in Johnston's vending-machine business, which Johnston had listed with them a few days earlier.
Negotiations were conducted from time to time over a period of more than a month. The vending-machine business consisted essentially of 33 juke boxes, 22 pinball machines, and 38 cigarette machines. Most of the machines were on location in cafes and other places; the rest were in a warehouse. Johnston represented the value of the machines to be equal to the $42,000 purchase price. According to the record, the machines were actually worth not more than $18,000 (less than the down payment) and perhaps as little as $5,000. Some of the machines were demonstrably worthless, such as 10-year-old juke boxes that would play only 78-rpm records, which are no longer made.
The prospective income from the business was of paramount concern to Parker. The 36 monthly principal payments were to be $668.68 each. Parker explained to Johnston that he knew nothing about the business and that he was...
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...assured the buyer of the good quality of the trees. The court held that revocation was within a reasonable time. In Parker v. Johnston (1968), 244 Ark. 355, 426 S.W.2d 155, the seller fraudulently misrepresented the past profits of a vending machine business and the value of juke boxes, cig......
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...the agreement with Robinson by misrepresentation and concealment that constituted fraud, either actual or constructive. Parker v. Johnston, 244 Ark. 355, 426 S.W.2d 155; Lane v. Rachel, 239 Ark. 400, 389 S.W.2d 621. Cf. Fausett & Co. v. Bullard, 217 Ark. 176, 229 S.W.2d 490; Farmers Coopera......
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...to establish fraud in obtaining a contract by fraudulent misrepresentation. Clay v. Brand, 236 Ark. 236, 365 S.W.2d 256; Parker v. Johnston, 244 Ark. 355, 426 S.W.2d 155. The instruction given was correct since the written instrument involved contained no statement about the vehicle mileage......
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Cockrum v. Pattillo
...not support Cockrum's contention that Pattillo made the payments with full knowledge of the misrepresentations. See Parker v. Johnston, 244 Ark. 355, 426 S.W.2d 155 (1968). POINTS 3 & 4. On the damage issues, Cockrum alleges that Arkansas is committed to the so-called 'out of pocket' measur......