Salter v. Aviation Salvage Co.

• Decision Date: 17 April 1922
• Docket Number: 21812
• Citation: 91 So. 340,129 Miss. 217
• Court: Mississippi Supreme Court
• Parties: SALTER v. AVIATION SALVAGE CO

91 So. 340

129 Miss. 217

SALTER v. AVIATION SALVAGE CO

No. 21812

Supreme Court of Mississippi

April 17, 1922

1 FRAUD. Sales. "Fraud" defined; silence on part of seller alone sufficient to avoid sale.

Fraud consists of anything which is calculated to deceive, whether it be a single act or a combination of circumstances, or acts or words which amount to a suppression of the truth, or merely silence, or other artifice by which a person is deceived, but to constitute a ground for avoiding a sale of personal property, the seller must have been under obligation to speak---mere silence alone not being sufficient.

2 SALES. Buyer who received the particular property purchased not entitled to other property expressly excepted by written contract, on ground of concealment by seller as to his ownership.

In a case where the purchaser of personal property was led to believe by the seller that he was getting, by his purchase all the property of a certain character owned by the seller and the contract of sale, which was in writing, expressly excepted therefrom certain property which the seller falsely represented to the purchaser that he did not own, when in fact it was owned by the seller, the purchaser is not entitled, under his contract of purchase, to such excepted property on the ground of such concealment by the seller; the latter being under no obligation to inform the purchaser of such ownership, for the reason the purchaser got what he bargained for---such concealment not being to his hurt.

HON. A. J. MCINTYRE, Chancellor.

APPEAL from chancery court of Clay county, HON. A. J. MCINTYRE, Chancellor.

Bill by S. G. Salter against the Aviation Salvage Company. Judgment of dismissal, and plaintiff appeals. Reversed and rendered.

Case reversed.

G. G Lyell, for appellant.

While the books are reluctant in giving an exact definition of fraud, they all agree that for fraud to exist there must be four elements present to induce fraud. (1) There must be a duty; (2) there must be a correlative right vested in the party defrauded; (3) there must be a wilful violation of the duty; and (4) there must be a resultant injury to the party owning the right.

They made a contract with Salter on January 14, 1920, for an option to buy the property sold to Salter on January 12, 1920, from which sale said property was expressly excepted. The appellees made another contract January 21, 1920, to purchase from Salter the property so purchased by him on January 12, 1920, from which sale said property in question was expressly excepted. In Salter's bill of sale to McClellan, which the appellees claim was pursuant to said contracts of January 14, and January 21, 1920, or should have been--in this bill of sale to McClellan, the property in controversy was expressly excepted.

In McClellan's deed of trust to Salter for the deferred payments on the property sold appellees by Salter the property in question is expressly excepted. Salter never sold or intended to sell the property in controversy to appellees in any of the transactions referred to, and they never intended to buy the property in controversy in any of those transactions, but knew they were not getting that property. Then, as a matter of absolute axiomatic demonstration, the appellees had no claim to the property in controversy and this case must be reversed.

Our theory of the case is that all prior agreements, written or verbal, were merged into the deed. And that the court erred in admitting or considering any other prior agreements, contracts, letters by other parties never included in the pleadings, and the great mass of hearsay testimony injected in the case, all of which was introduced over the objections of complainant. That Salter acquired this property after he had bargained with defendants and at a time when neither Salter nor the defendant had any reason to believe that he would acquire same, and all knew that when the bargain was made between them that it was excluded from their bargaining by the statement made by the auctioneer representing the government, that the government would retain this specific property. Furthermore, that all prior bargaining, officers, bid and dickerings between the parties was merged into the deed of conveyance executed and delivered on the 26th, day of January, 1920, by Salter to defendants' agent, J. J. McClellan, and as evidenced by McClellan's deed of trust back to Salter. Bratton v. Howard, 52 So. 210.

Furthermore the defendants did not pray for a reformation of their contract with Salter, nor of his deed to them, and the proof was insufficient anyway.

In conclusion we respectfully submit that a decree should be entered for appellant in this court.

Roberds & Beckett, for appellee.

The chancellor, who heard the testimony and saw the demeanor of the witnesses on the stand, held that the appellant had practiced a legal fraud. What is a legal fraud?

(1) No Definition Laid Down. "What constitutes a case of fraud in the view of courts of equity, it would be difficult to specify. It is, indeed, part of the equity doctrine of fraud not to define it, not to lay down any rule as to the nature of it, lest the craft of men should find ways of committing fraud which might escape the limits of such a rule or definition. The court very wisely hath never laid down any general rule beyond which it will not go, lest another means for avoiding the equity of the court should be found." Bouvier's Law Dictionary, Volume 2, page 1306.

"It is utterly impossible to formulate any single statement which shall accurately define the equitable conception of fraud, and which shall contain all of the elements which enter into that conception; these elements are so various, so different under the different circumstances of equitable cognizance, so destitute of any common bond of unity, that they cannot be brought within any general formula." 2 Pomeroy's Equity. Jurisprudence, (2 Ed.) par. 873. See, also, Myers v. Farrell, 47 Miss. 281; Staton v. Bryant, 55 Miss. 261.

(2) Definition. A reference to some of the definitions given in the book will visualize before the mind a background against which to apply the facts of this case. Actual or positive fraud includes cases of the intentional and successful employment of any cunning deception, or artifice, used to circumvent, cheat, or deceive another. 1 Story, Eq. Jur., par. 186; 1 Story, Eq. Jur., ch. 7; Tyler v. Savage, 143 U.S. 79; 12 S.Ct. 340, 36 L.Ed. 82; Bouvier's Law Dictionary, vol. 2, p. 1304.

It may be stated as a general rule that fraud consists in anything which is calculated to deceive, whether it be a single act or combination of circumstances whether, it be by suppression of the truth or suggestion of what is false; whether it be by direct falsehood or by innuendo, by speech or by silence; by word of mouth or by a look or jesture. Fraud of this kind may be defined to be any artifice by which a person is deceived to his disadvantage. Bishop's Equity, par. 206; 2 Pomeroy's Equity Jurisprudence, (2 Ed.) par. 900; 12 R. C. L., par. 82.

Do the facts disclosed by this record show a legal fraud? There are two facts clearly established by the record, to-wit: (1) The appellees purchased from the appellant all of the property of every kind or character that appellant purchased from the government, and (2) that the appellant got nothing from the government, except by purchase on January 12, 1920.

(1) Appellees Purchased Everything Purchased by Appellant. Salter, the appellant, purchased the property from the government on January 12, 1920, on January 14, 1920 he gave to D. Cottrell and John Cox, two of the appellees, and who afterwards took in as partners the other appellees, an optional contract of purchase. In this optional contract, the property to be purchased is described as "all of the buildings, equipments, structures, machinery, property, real and personal or mixed of every kind, character or description purchased by the said first party at Payne Aviation Field, about five miles north of West Point, Clay county, Mississippi, at a public sale held at said field on Monday, January 12, 1920, the intention being to include in this contract all the property of every kind purchased on said occasion by first party and the rights and privileges, if any, purchased at the time or incident to the purchase of the said property.

(2) All Property Salter Got, He Got Under His Purchase of January 12. The only property which Salter got at Payne Field was that purchased by him on January 12. The commanding officer had the power, or if not, all parties thought he had the power to say what property should be included within the sale. Civilians generally, during the war, and just after the war (and this is always true during military reign) were ready to abide by the decisions of the government through its military agent (1) Appellees intended to purchase and did purchase everything which appellant purchased from the government. (2) Everything which appellant got from the government, he purchased at the sale of January 12, 1920.

(3) Did Appellant Deceive the...