Taliaferro v. Boyd

• Decision Date: 16 November 1914
• Docket Number: 241
• Citation: 171 S.W. 105,115 Ark. 297
• Parties: TALIAFERRO v. BOYD
• Court: Arkansas Supreme Court

171 S.W. 105

115 Ark. 297

TALIAFERRO v. BOYD

No. 241

Supreme Court of Arkansas

November 16, 1914

Appeal from Cleveland Chancery Court; John M. Elliott, Chancellor affirmed.

STATEMENT BY THE COURT.

E. M Taliaferro instituted this action in the chancery court against Josephine Boyd to compel specific performance of a contract for the exchange of real estate. The plaintiff Taliaferro, testified on behalf of himself substantially as follows: I formerly resided in the town of Rison, in Cleveland County, Arkansas, but I now reside in the city of Seattle in the State of Washington; in November, 1912, I came to Rison, Arkansas, where I owned a frame hotel, and while there George Tolson asked me if I wanted to swap my hotel property for property at Pine Bluff, Arkansas, owned by Mrs Josephine Boyd; I first looked at her property and in about a week came back to Rison, where Mrs. Boyd resided, and went to see her; after talking the matter over with her she told me to see George Tolson and any deal I could make with him would be all right with her; Mr. Tolson went with me to see the hotel property and Mrs. Wayne, who was running the hotel at the time; I showed him over the premises and showed him the land that belonged to the hotel and which I was to convey to Mrs. Boyd; on December 4, 1912, Mrs. Boyd and I entered into a written contract whereby she agreed to convey to me one-fourth of a block of ground in the city of Pine Bluff belonging to her, and in exchange therefor I agreed to pay her $ 225, and to convey to her my hotel property at Rison including the lots, and all the fixtures and furniture and furnishings thereunto belonging; the agreement further provided that in case of the loss of the buildings on either place by fire before the trade was consummated, the contract should be void.

Mrs. Josephine Boyd, in her own behalf, testified: George Tolson came to me and told that Mr. Taliaferro had spoken to him about exchanging my Pine Bluff property for his hotel property at Rison; Mr. Tolson first looked at the property and I talked with Mr. Taliaferro about it afterward; Mr. Taliaferro represented to me that he had an acre and a half or two acres of ground and when I asked him if the fence around the property was on the line he said that I would get all the fencing; he further represented to me that Mrs. Wayne, who was then running the hotel, was running after him for a lease and that he was then renting it to her for $ 30.00 per month; I suggested an exchange of insurance with Mr. Taliaferro and told him I would not take the property unless I could carry good insurance on it and asked him how much insurance he carried; he replied that he did not carry insurance on the hotel, as he did not think it paid him, but said that parties had been after him, trying to get him to take out insurance on it; he did not tell me that the property could not be insured; I also asked him about the building of a brick hotel in the town of Rison and he told me that he had traveled a good deal and he did not see any town of the size of Rison with a brick hotel, and further stated that he had talked to Doctor Ackerman a few days before that time and that Doctor Ackerman had told him that he was not going to build a brick hotel; on the next day after the contract was made I went with Mr. Taliaferro and Mr. Tolson to look at the hotel property and I spoke to Mrs. Wayne about leasing the hotel; she told me that she did not want to lease it; on that same visit I also found out that all the property within the enclosure did not belong to Mr. Taliaferro; subsequently I went to see some agents about insuring the property and was informed by them that no insurance from a reputable company could be had upon the hotel; after that the property was surveyed and it was ascertained to contain one and one-seventh acres and the survey also showed that there was one-seventh of an acre within the enclosure that did not belong to the hotel.

Mrs. Boyd also testified that she believed the statements and representations made by Taliaferro and relied upon them at the time she entered into the contract with him; and that she refused to carry out the contract when she ascertained that they were not true.

George Tolson testified that when Mr. Taliaferro showed him the property he represented that there was one and one-half or two acres of the land that went with the hotel; that as he went into the hotel to examine it he saw where the fences were on the north side of the property and after they got to the other side of the house he asked Taliaferro if all the property within the fences belonged to the hotel, and that Taliaferro, with a wave of the hand, replied that it did; that at that time, however, they could not see the fence on the north side of the house, but that he understood that Taliaferro referred to the whole enclosure as belonging to him; and that when the land was surveyed it was ascertained that sixty-two feet on the front, which ran back in an irregular shape on the north side of the house, did not belong to Taliaferro.

Other witnesses for the defendant testified that no insurance on the property could be secured from a reliable insurance company; and it was also shown that in a short time after the contract was made, Doctor Ackerman began the erection of a brick hotel and that Mrs. Wayne had a lease from him on the proposed building.

The plaintiff in rebuttal testified that he had been solicited by insurance agents to take out insurance on the property and that they represented reliable companies, and that at the time he made the contract with Mrs. Boyd he did not know that Doctor Ackerman contemplated the building of a brick hotel in the town of Rison.

The chancellor found in favor of the defendant and dismissed the complaint for want of equity; and the plaintiff has appealed.

Decree affirmed.

Crawford & Hooker, for appellant.

1. Where the contract relates to real property, a mere judgment for the payment of money damages for the breach of the contract is not an adequate remedy or compensation, and, therefore, courts of equity will decree a specific performance, where the contract is in writing, is certain, fair and for an adequate consideration and capable of being performed. Here the case meets all these requirements. The burden was on the appellee to prove by a preponderance of the evidence that appellant made the representations alleged, that they were material, that they were false, and that she was induced by them to make the contract. If she failed therein the court had no discretion to refuse to enforce it. 1 Story, Eq. Jur., § 751; 16 Ark. 340-363; Bispham's Principles of Equity, § 364; 4 Pomeroy, Eq. Jur., §§ 1402, 1404; 30 Ark. 547; 2 Story, Eq. Jur., § 742.

The strip of land complained of was not a material shortage. If the court had found as a fact that appellee or her agent made the contract under the impression that there was more land belonging to the hotel property than did in fact belong to it, it would have been proper to allow compensation for the shortage and require appellee to convey her property to appellant. Snell's Principles of Eq., (1 Am. Ed.) 475; Bispham's Prin. Eq., § 363; 4 Pomeroy, Eq. Jur., § 1407 and note 1; 11 Ark. 58, 80.

2. As to the alleged misrepresentations concerning the insurance and the building of a brick hotel, no false statements by the appellant are shown. The burden was on appellee to prove them.

As to the statement that Mrs. Wayne wanted to lease the property if it be conceded that it was made, as alleged, it is not sufficient to defeat appellant's right to specific performance. It could amount to nothing more than a puffing or recommendation of his property. 1 Ark. 31; Story's Eq. Jur.,...