Tarlton v. Keith
| Decision Date | 20 May 1959 |
| Docket Number | No. 465,465 |
| Citation | 250 N.C. 298,108 S.E.2d 621 |
| Parties | Roy TARLTON and Dewey Smith v. H. M. KEITH and Grady Earp. |
| Court | North Carolina Supreme Court |
Coble Funderburk, Monroe, for plaintiffs, appellees.
Taylor & Morgan, Lillington, for defendants, appellants.
Defendants assign as error the overruling of their motion for judgment of nonsuit renewed at the close of all the evidence. G.S. § 1-183.
The timber deed from Luby Denning and wife to plaintiffs is not in the Record. There is no suggestion that the description of the tract of timber in this deed was defective, or did not disclose the correct boundaries of the tract of timber, or did not convey to plaintiffs all the timber owned by Luby Denning and wife on this tract of land. L. T. Bryant, a surveyor and witness for the plaintiffs, illustrated his testimony by a sketch of the land drawn on a blackboard. We do not have the benefit of such sketch. No copy of it was made, and inserted in the Record.
Defendants admitted in their answer that a survey made by L. T. Bryant after the timber deed was executed and delivered to plaintiffs showed that 45 acres of timber pointed out by them to plaintiffs on 7 June 1957 as being part of the timber plaintiffs were buying was not included in the timber deed, but said 45 acres of timber belonged to the Denning estate. Plaintiffs' evidence is that, when Grady Earp, one of the defendants, was pointing out the boundaries of the tract of timber to them before they purchased it, he said the lines he was pointing out were the lines the owner had pointed out to him.
Luby Denning on 16 May 1957 had his land surveyed, and his lines clearly cut all around it. When this survey was made, two of the surveying party went 25 or 30 yards beyond his corner, and chopped a line, apparently in the tract of timber of the Denning estate. It would seem that this is what caused Grady Earp to point out to plaintiffs on 7 June 1957 that the tract of 45 acres of timber of the Denning estate was part of the Luby Denning timber.
However, there is no evidence that when Grady Earp pointed out the 45 acres of timber belonging to the Denning estate as being part of the Luby Denning timber, he, or his codefendant H. M. Keith, knew the representation was false, or that he made it recklessly, without any knowledge of its truth, and as a positive assertion. Hence, it would seem as a necessary consequence there was no intent on the part of the defendants to deceive. There is no evidence that defendants resorted to any artifice to induce plaintiffs to forego making inquiry as to the lines of the tract of timber. Scienter and intent to deceive are essential elements of actionable fraud. Cofield v. Griffin, 238 N.C. 377, 78 S.E.2d 131, 40 A.L.R.2d 966; Ebbs v. St. Louis Trust Co., 199 N.C. 242, 153 S.E. 858. Plaintiffs' counsel acted properly in stating to the trial court that he was not proceeding on the ground of fraud, for the reason that plaintiffs' evidence, and so much of defendants' evidence as is favorable to plaintiffs, considered in the light most favorable to plaintiffs, are not sufficient to make out a case of actionable fraud.
The case was tried on the theory that if at the time the purchase price of the timber was paid, plaintiffs reasonably understood that the 45 acres of timber on the Denning estate was included in the acreage of timber bought, they were entitled to recover from defendants. And on the second issue the court instructed the jury: 'The measure of damages would be the value of that timber on the Denning Estate tract of the approximately 45-acre tract, at the time that the purchase price was paid.'
The trial judge instructed the jury on the first issue, in part, substantially as follows: The plaintiffs contend that you should be satisfied by the greater weight of the evidence that the defendant Earp on 7 June 1957 pointed out the timber to them, including the timber on the 45 acres on the Denning estate, which the defendants did not have any option upon, that they paid the purchase price honestly believing that the timber they were buying included the timber on the 45-acre tract, 'that there was a mistake, and that they never did come to any meeting of the minds,' and that the jury should answer the first issue, Yes.
Defendants had an option to buy the timber for $17,500, and were to have a 5% commission for selling it. When plaintiffs agreed to buy the timber, they delivered the cheque in payment for it to Taylor & Morgan, attorneys at law, with instructions to hold it, until title to the timber could be checked, and a timber deed made to them. The owners of the timber deeded it to plaintiffs. Plaintiffs do not assail the timber deed or any of its provisions. The owners of the timber conveyed by them to plaintiffs are not parties, and plaintiffs seek no relief against them. The contract was the purchase and sale of timber, consummated by deed. Certainly the makers of the timber deed are essentially involved in determining as to whether or not there was any meeting of the minds in the...
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