Shepherd v. W. T. Mason Lumber Co

• Citation: 81 S.E. 1064,166 N.C. 130
• Decision Date: 30 May 1914
• Docket Number: (No. 647.)
• Court: United States State Supreme Court of North Carolina
• Parties: SHEPHERD et al. v. W. T. MASON LUMBER CO.

(166 N.C. 130)

81 S.E. 1064

SHEPHERD et al.

v.W. T. MASON LUMBER CO.

(No. 647.)

Supreme Court of North Carolina.

May 30, 1914.

1. Fraud (§ 52*)—Actions—Evidence—Admissibility.

In an action for damages for false representations made in inducing plaintiffs to move their sawmill to a certain point, evidence that they had given a mortgage on their home to secure the necessary funds is inadmissible, for, while it is competent for plaintiffs to show their damages and any outlay made, it is immaterial upon what kind of a mortgage the money was raised, particularly as the evidence would prejudice defendant before the jury.

[Ed. Note.—For other cases, see Fraud, Cent. Dig. § 48; Dec. Dig. § 52.*]

2. Appeal and Eerob (§ 1050*)—Review-Harmless Error.

Where defendant induced plaintiffs to move their sawmill to a given point, and plaintiffs claimed that misrepresentations were made, the improper admission of evidence that plaintiffs secured the money for the disastrous move by a mortgage upon their home is prejudicial, because it would affect the sympathies of the jury, particularly as defendant was a wealthy corporation.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]

Appeal from Superior Court, Swain County; Ferguson, Judge.

Action by J. D. Shepherd and another against the W. T. Mason Lumber Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

This action was brought to recover damages for the false and fraudulent representations of defendant as to the quantity and quality of felled timber on the waters of Bunches creek, and on the yard situated on Mingo creek; the amount of timber on Bunches creek having been represented to be 2, 000,-000 feet, and that on Mingo creek, in the yard, as 500, 000 feet. Issues were submitted to the jury, and the following verdict rendered: "(1) Did the defendant, W. T. Mason Lumber Company, through its legally au thorized agent, falsely represent to the plaintiff the quantity and quality of felled timber on the waters of Bunches creek, referred to in the contract of October 14, 1911? Answer: Yes. (2) Were such representations, if made, known to the defendant, at the time said contract was entered into, to be false, or were they made without the knowledge of the truth, as a positive assertion? Answer: Yes. (3) Were such false representations, If any, made with the intent to deceive the plaintiffs to their injury? Answer: Yes. (4) Were the plaintiffs induced to enter into said contract solely because of said representations? Answer: Yes. (5) Did the plaintiffs have ample opportunity, prior to the entering into said contract, to have examined the quantity and quality of said timber? Answer: No. (6) Were they, by any trick or artifice on the part of the defendant, prevented or kept from making such examination? Answer: Yes. (7) What damage, if any, have the plaintiffs sustained by reason of such representations? Answer: $700. (S) Did the defendant, W. T. Mason Lumber Company, through its legally authorized agent, falsely represent to the plaintiff the quantity and quality of the logs to be sawed into lumber on the yard on Mingo creek, as alleged in the complaint? Answer: Yes. (9) Were such representations, if made, known to the defendant to be false at the time they were made? Answer: Yes. (10) Were such false representations, if any, made with the intention on the part of the defendant to deceive the plaintiffs to their injury? Answer: Yes. (11) Were the plaintiffs induced to enter into the agreement to saw said logs on Mingo creek solely by reason of said representations? Answer: Yes. (12) Did the plaintiffs have ample opportunity, prior to entering into said agreement and prior to moving their mill to Mingo creek, to have examined the quantity and quality of logs and the character of roads leading thereto? Answer: No. (13) Were the plaintiffs, by any trick or artifice on part of defendant, prevented or kept from making such examination? Answer: Yes. (14) What damage, if any, are the plaintiffs entitled to recover on account of false representations as to quantity of logs on Mingo creek? Answer: $800. (15) Did the plaintiffs wrongfully abandon the performance on their part of the contract of October 14, 1911, and fail and refuse to perform the same? Answer: No. (16) If so, what damages has the defendant sustained on account of said abandonment of said contract? Answer: None." Judgment was entered thereon, and defendant appealed.

Zebulon...