Scott v. Moore

• Court: Arkansas Supreme Court
• Writing for the Court: FRAUENTHAL, J.
• Citation: Scott v. Moore, 116 S.W. 660, 89 Ark. 321 (Ark. 1909)
• Decision Date: 15 February 1909
• Parties: SCOTT v. MOORE

116 S.W. 660

89 Ark. 321

SCOTT v. MOORE

Supreme Court of Arkansas

February 15, 1909

Appeal from Washington Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

Mayes & McDonald, for appellant.

Ground of suspicion of fraud is not enough, it must be proved. 9 Ark. 485; 11 Id. 378; 17 Id. 146; 68 Me 200; 72 Id. 415; 67 Pa. 459; 40 Ark. 417. The law requires each contracting party to be vigilant and exercise a due degree of caution. 7 Ark. 165. While in equity it is sufficient to show facts from which fraud may be presumed yet at law fraud must be proved and expressly found. 33 Ark 425. A false representation, to be actionable, must not only mislead, but it must be made fraudulently and with that intent. 38 Ark. 334. If the statement is known by the other party to be false, it can have no effect upon his decision. 8 Ark. 146. This court will carefully weigh the legal sufficiency of the evidence upon which a verdict has been rendered by a jury. 70 Ark. 136; 67 Id. 47; 57 Id. 461. The evidence is insufficient, and the motion for a new trial should have been sustained. 70 Ark. 136; 67 Id. 47; 57 Id. 461. Notice to one is notice to his client. 21 Ark. 22; 75 Id. 343. A conveyance by quitclaim deed is insufficient to put a man on inquiry. 23 Ark. 731; 50 Id. 327; I Coldw. 456; 3 Hayne, 147; 9 Am. Dec. 736. For the purpose of ascertaining the true intent of the parties, the court will consider all the circumstances connected with the transaction. 13 Ark. 112.

E. S. McDaniel, H. A. Dinsmore, and Williams & Buchanan for appellee.

A man who has deceived another should not be permitted to say, "You ought not to have believed me," or "You yourself have been guilty of negligence." 22 R. I. 18; 130 Ind. 288.

OPINION

FRAUENTHAL, J.

This is an action brought by the appellant, J. P. Moore, against the appellee, J. P. Scott, to recover damages on account of fraud and deceit, and growing out of the sale of a tract of land.

On September 11, 1903, J. P. Moore was and for a number of years prior thereto had been the owner of a tract of land containing 110 acres; and on said day sold and conveyed the same to J. P. Scott for the agreed price of $ 5,500. Prior to that time and on October 23, 1902, J. P. Moore had borrowed from J. P. Hight a sum of money, for which he had executed to Hight his note due 12 months after its date, and to secure said note executed a mortgage to Hight on said land; and on the 11th day of September, 1903, the note secured by the mortgage amounted to $ 1,200. On September 11, 1903, when Moore sold the land to Scott, it was agreed by them that the purchase money of $ 5,500 should be paid in the following manner: Scott paid to Moore the sum of $ 300 in money, and assumed to pay the note which had been executed by Moore to Hight, and which was secured by the mortgage on the land, and which at the time amounted to $ 1,200; and for the remainder of $ 4,000 Moore should retain a vendor's lien on the land payable with interest in five years. The deed executed by Moore to Scott recited that the $ 1,500 was paid down, and a vendor's lien was retained for the $ 4,000; but as a matter of fact only $ 300 was paid in money, and the balance of said $ 1,200 was paid by the assumption by Scott of the said $ 1,200 note and mortgage executed by Moore to Hight.

On January 9, 1904, Scott made a payment of $ 301.80 on the Hight note and mortgage, and made no further payment. After the sale of the land by Moore to Scott, no demand was made of Moore for the payment of any interest or principal of the note and mortgage executed by him to Hight. Moore began to make inquiries as to whether Scott had paid the note and mortgage, and in April, 1904, Scott assured Moore that he had paid the note and mortgage executed to Hight. Scott went into possession of the land immediately upon his purchase thereof, and remained in possession of same continuously to the 6th of August, 1907, when he re-conveyed the land to Moore. Prior to August 6, 1907, some disagreement arose between Moore and Scott as to the time when the $ 4,000 should have matured and as to the payment of interest thereon. On August 6, 1907, the parties entered into a written contract by which Scott agreed to sell and convey the land back to Moore. At that time Moore claims that he understood and believed that the note and mortgage executed by him to Hight had been paid by Scott. Relying on the above representation which had been made by Scott to him to that effect, he agreed to pay to Scott on the re-purchase of the land the sum of $ 750 in cash and to release and satisfy his claim against Scott for $ 4,000 and interest due on the land. The written contract states that Scott conveys back to Moore the land for that consideration, and also states that Scott covenants that the property is not covered by any mortgage or lien of any kind since he has owned it. And the deed executed in pursuance of said contract on August 6, 1907, by Scott to Moore recites that Scott covenants that he has not mortgaged said land nor placed a lien of any kind on it since he had owned it. The deed executed by Scott to Moore, except containing the above covenant, is a quitclaim deed. Sometime after the re-sale and re-conveyance of said land by Scott to Moore, the appellee learned that Scott had not paid the note and mortgage which he had executed to Hight.

Claiming that he had been induced to buy back the land by the false representations made by Scott to him of the payment of the Hight note and mortgage and the fraudulent concealment of its non-payment, Moore instituted this suit against Scott for damages.

The defendant denied making any statement or representation that he had paid the Hight note and mortgage, and also claimed that he was not legally liable to pay the Hight note under the statute of frauds, which he pleaded; and claimed that in the re-sale of the land by him Moore agreed to pay and re-assumed the payment of the Hight note and mortgage. Testimony was introduced by the parties tending to prove their respective contentions as above set forth. The jury returned a verdict in favor of appellee, Moore, for $ 1,434.16, and from the judgment rendered thereon Scott prosecutes this appeal.

1. It is contended by the defendant that he was not legally liable for the payment of the note and mortgage executed by Moore to Hight under the statute of frauds for the reason that his agreement to pay same is an undertaking to pay the debt of another and was not in writing signed by him. The agreement by Scott to pay the Hight note was not a collateral undertaking, and does not fall within the statute of frauds [Kirby's Dig., § 3654]. The assumption by Scott of the payment of the note given by Moore to Hight was a part of the consideration which Scott agreed to pay for the land when he bought the same from Moore, and was therefore based on a new consideration, and was an original undertaking.

In Kurtz v. Adams, 12 Ark. 174, it is said "But where, distinct from the original liability, there is a new and superadded consideration for the promise moving between the party promising and him to whom the promise is made, in such case it is an original undertaking." And so a parol promise to pay the debt of another is not within the statute of frauds when it arises from some new...