Storthz v. Williams

• Decision Date: 08 June 1908
• Citation: 111 S.W. 804,86 Ark. 460
• Parties: STORTHZ v. WILLIAMS
• Court: Arkansas Supreme Court

111 S.W. 804

86 Ark. 460

STORTHZ v. WILLIAMS

Supreme Court of Arkansas

June 8, 1908

Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor affirmed.

Decree affirmed.

Eben W Kimball, for appellant.

1. Inadequacy of consideration, when amounting only to hardship furnishes no ground of equitable relief; and when there is no fraud, courts will not relieve from the consequences of contracts voluntarily and understandingly entered into. 24 Pa.St. 360; 21 Gratt. (Va.), 75; 104 Mass. 420; 35 Tex. 225; 17 Mo. 237; 41 N.Y. 329; 5 Pet. (U.S.) 263; 17 Va. 9; 69 Ill 394; 21 Ala. 371; 4 Ind. 66. Where no fraud is shown (the burden is on the pleader to prove it), mere inadequacy of price is not sufficient to rescind a contract. 1 Wharton on Contracts, §§ 165-6; 1 Perry on Trusts, 186; 71 Ark. 599. When the means of information are at hand and equally open to both parties, and no concealment is made or attempted, a misrepresentation by one party to a contract furnishes no ground for equitable interference. 83 Ark. 403; 1 Wharton on Contracts, § 256. It is now too late to interfere. 55 Ark. 148, 155.

2. No demand was made before suit to return the property, nor was tender made of the amount paid or a deed to be executed. 15 Ark. 286, 291; 17 Id. 240, 603; 62 Id. 274; 59 Id. 259; 54 Cal. 161; 1 Wharton on Contracts, § 285 and 919 (2). The fact that the bargain was hard and unreasonable is not enough to induce a court of equity to interfere. 16 A. & E. Enc. p. 699, and note p. 698. The other party must be made whole. 24 Id. p. 621.

Lee Miles and J. D. Wade, for appellee.

1. The sale should be rescinded because of the wilfully false representations of the agent of Storthz, the inadequate consideration and the undue influence and fraud by one holding a fiduciary relation to appellee. 69 Ill. 394; 57 N.H. 374; 64 Tex. 679; 49 Mich. 290; 29 S.W. 242; 35 Id. 186; 111 Mo. 1; 11 Ark. 66; 15 Id. 599; 17 Id. 498; 22 Id. 102; 47 Id. 339; 74 Id. 239; Bispham, Eq. (6 Ed.), art. 206, 219.

2. The most flagrant element of fraud is the violation of the fiduciary relation existing between the guardian, West, and appellee. 40 Ark. 30; 5 Blackf. (Ind.) 509; Bisph. Eq. (6 Ed.), art. 232.

3. A tender was made. 74 Ark. 68; 74 Id. 70.

BATTLE, J. HART, J., being disqualified, did not participate.

OPINION

BATTLE, J.

Rosa Williams acquired one-half of lot one in block seventy in the city of Little Rock, through the will of her aunt, Tobitha Smith, of whom Evelyn West had been administratrix or executrix. Rosa Williams was a non-resident of Little Rock, and Storthz knew not her whereabouts. He desired to purchase the lot, and employed D. F. Rose for that purpose. Rose employed Evelyn West to find and induce her to sell to him. He did so because she said she could control Rosa. In 1903 Rosa visited Little Rock, and saw Evelyn, who sent her (Rosa) to D. F. Rose, saying he was a real estate agent and wanted to buy her lot, and was a gentleman, and would do what was right. She told him that Evelyn West had sent her to him. He asked what interest she had in the lot, and she said one-half, and he then asked what she wanted for it, and she replied $ 1,000, and he "laughed at it," and told her it would be sold for taxes, and she might be forced to put down a sidewalk, and the lot would be sold to pay expenses. She wanted to go to see her agent, Harp, to ascertain the value of the lot, and Rose persuaded her not to go. He told her the whole lot was not worth $ 500. He testified in this case that at that time it was worth $ 5,000; that the improvements were worth $ 1,500, and the lot without them was worth $ 4,000. He induced her to accept $ 300 for her half of the lot, saying he had offered that much because Evelyn had sent her to him. She furnished him with an abstract of title to the lot, and an attorney examined it, and Storthz said it was all right. Storthz paid her $ 293, reserving seven dollars to pay for the abstract, and she executed a deed to him on the seventh day of July, 1903. Rose testified that Storthz soon after this refused to take $ 2,500 for one-half of the lot, and said that he had purchased "too cheap." He admitted that he had given $ 1,030 for the other half of it.

At the time of this purchase Rosa Williams was about twenty years of age, was ignorant and inexperienced, and up to within three or four days of this time had not been in Little Rock for at least five years, and probably eight years. The value of the lot at this time was variously estimated by witnesses at from $ 1,800 to $ 5,000, the average estimate being about $ 3,000, which according to the evidence seems to be a reasonable estimate.

On the 10th day of December, 1903, Rosa Williams brought suit against Levi Storthz in the Pulaski Chancery Court to set aside the deed executed by her to the defendant, for the possession of the lot and for rents thereof while in his possession, and offered to return to him the money she received from the lot. The defendant answered and denied that he was guilty of any fraud in the purchase of the lot, and that she had tendered to him the purchase price he had paid her, and alleged that she had spent the same.

After hearing the evidence, the court found as follows: "that on the 7th day of July, 1903, the plaintiff, Rosa Williams in consideration of the sum of $ 300 to her paid by the defendant, Levi Storthz, executed to the defendant a warranty deed to an undivided half of lot one, block seventy, in the city of Little Rock; that possession of the land was delivered by the plaintiff to the defendant, and he is now in occupancy thereof, and has made improvements thereon, necessary to the use of the tenements thereon; that the plaintiff was a young negro girl, now 22 years of age, a stranger in the town and inexperienced as to the values of real estate; that false and fraudulent representations were made to her by parties who knew them to be false, which induced her to make the sale of the premises; that the sum of $ 300 was an inadequate price for the premises, or the interest which plaintiff possessed, and that the interest of the plaintiff was an undivided one-half of the lot; and that, after balancing accounts, one-half of the expenditures for improvement of the property paid by the defendant Storthz, with interest calculated, together with the purchase price paid to the plaintiff by the defendant, two hundred and ninety-three dollars, is sixty dollars and eighteen cents more than one-half of the rents of the property with interest." And the court adjudged and decreed that the deed executed by the plaintiff to the defendant be set aside and cancelled, and the interest in one-half of the lot be divested out of the defendant and invested in plaintiff, and that plaintiff have judgment for costs, and defendant have lien on the lot for the $ 60.18 to be paid by plaintiff in the registry of the court within ninety days,...