Thomason v. Mosrie

• Decision Date: 15 July 1950
• Docket Number: No. 10205,10205
• Citation: 60 S.E.2d 699,134 W.Va. 634
• Parties: THOMASON et al. v. MOSRIE.
• Court: West Virginia Supreme Court

Page 699

60 S.E.2d 699

134 W.Va. 634

THOMASON et al. v. MOSRIE.

No. 10205.

Supreme Court of Appeals of West Virginia.

Submitted April 18, 1950.

Decided July 15, 1950.

Syllabus by the Court.

1. Damages sought to be recovered for an injury resulting from fraud and deceit, which are the natural but not the necessary result of the facts alleged in the declaration, must be specifically alleged.

2. A verdict clearly in excess of the amount which the evidence shows the plaintiff is justly entitled to recover should be set aside by the trial court.

Clark M. Thornton, Princeton, James S. Kahle, Bluefield, for plaintiff in error.

Ajax T. Smith, Robert Carr, both of Princeton, for defendants in error.

HAYMOND, Judge.

This action of trespass on the case was instituted in the Circuit Court of Mercer County by the plaintiffs, Ina Thomason, formerly Ina Thomason Cornett, and Shedrick Beggs, as partners, to recover from the defendant G. S. Mosrie damages alleged to have resulted from fraud and deceit practiced by him in the sale of a lease upon a building and a restaurant, including fixtures and food supplies in the leased building, in the City of Princeton. The declaration contains two counts and the damages claimed by the plaintiffs and stated generally in the declaration were in the sum of $5,000. An attachment was issued and levied upon certain real estate of the defendant. The court overruled the demurrer of the defendant to the declaration and each of its counts and, upon the issues raised by the declaration and the defendant's plea of not guilty and the evidence introduced in behalf of the respective parties, the jury returned a verdict in favor of the plaintiffs for $3,750. By its order of April 5, 1949, the trial court overruled the separate motions of the defendant to set aside the verdict and to enter judgment in favor of the defendant notwithstanding the verdict, and rendered judgment in favor of the plaintiffs for the amount of the verdict with interest and costs. The order also directed a sale of real estate of the defendant under the levy of the attachment. To the final judgment this Court granted this writ of error upon the petition of the defendant.

Each of the two counts of the declaration contained, in substance, these allegations:

On September 11, 1944, J. M. Mosrie was the owner of a lot of land on Mercer Street in the City of Princeton, on which was located a one story building suitable for use as a restaurant and a dwelling. On that day, by instrument in writing, he leased the foregoing property to the defendant G. S. Mosrie for a term of five years from February 1, 1945, at a rental of $47.50 per month. The lease provided that if J. M. Mosrie should sell or build upon the property, G. S. Mosrie should, within a reasonable time thereafter, surrender possession of the property to J. M. Mosrie or his vendee. The defendant G. S. Mosrie took possession of the leased premises and operated a restaurant in the building until he assigned his rights under the lease to the plaintiff, Ina Thomason. By deed dated March 19, 1946, and duly recorded in the office of the Clerk of the County Court of Mercer County, J. M. Mosrie and his wife sold and conveyed the property occupied by the defendant to Chahin El Mosrie. By written notice given to the defendant G. S. Mosrie on March 26, 1946, J. M. Mosrie and Chahin El Mosrie informed him of the sale and the conveyance of the property to Chahin El Mosrie and notified G. S. Mosrie that, by virtue of the sale and the conveyance, the lease was terminated, and that he was required to deliver possession of the property to Chahin El Mosrie on or before June 1, 1946.

G. S. Mosrie failed to comply with the requirement of the notice to deliver possession to Chahin El Mosrie, and on a day prior to October 24, 1946, told the plaintiff, Ina Thomason, in the building on the leased premises, that he would sell her the restaurant, its stock of goods and provisions, the equipment and the fixtures then in the building, and the lease for the sum of $5,000, and at that time, with intent to deceive and defraud the plaintiff, Ina Thomason, and to induce her to accept his offer of sale, falsely and fraudulently concealed from her the sale and the conveyance of the property by J. M. Mosrie to Chahin El Mosrie and the notice to him of the termination of the lease. At the time of the offer of the defendant G. S. Mosrie to sell to the plaintiff, Ina Thomason, the restaurant, the stock of goods and provisions, the equipment and the fixtures, and the lease, she called to the attention of the defendant G. S. Mosrie the provision of the lease relating to its termination in the event J. M. Mosrie should sell the property or build upon it within the five year term and requiring G. S. Mosrie to deliver possession of the property to J. M. Mosrie or his vendee within a reasonable time after such sale or such building; and the defendant G. S. Mosrie, with intent to deceive and defraud the plaintiff, Ina Thomason, and to induce her to accept his offer of sale, then falsely and fraudulently warranted and represented to her that, if she accepted his offer, she need not worry about a termination of the lease during its five year term because of the foregoing provision, that J. M. Mosrie still owned the leased property, that he would not want possession of the property during the term of the lease, and that, if she accepted the offer of sale, she could retain possession of the premises during the remainder of the five year term of the lease.

After this conversation with the defendant G. S. Mosrie, the plaintiff, Ina Thomason, on October 24, 1946, informed the plaintiff, Shedrick Beggs, of the foregoing offer, representations and statements of the defendant, G. S. Mosrie, to her, and she and the plaintiff, Shedrick Beggs, then formed a partnership for the purpose of purchasing the restaurant, the stock of goods and provisions, the equipment and the fixtures, and the lease from the defendant, and she and Beggs agreed that Beggs should furnish $1,000 of the purchase price and receive a one fifth interest and that she should furnish the remainder of the purchase price and receive a four fifths interest in the partnership.

Subsequently, on October 24, 1946, the plaintiff, Ina Thomason, in accordance with the foregoing partnership agreement, relying upon the false and fraudulent representations and statements of the defendant G. S. Mosrie, and believing them to be true, purchased from him, in behalf of the plaintiffs, as partners, the restaurant, the stock of goods and provisions, the equipment and the fixtures, and the lease, for the sum of $5,000, of which sum she paid the defendant $1,000 in cash and $3,600 by her conveyance to him of her residence property. She also assumed the payment of a lien upon a cash register, part of the property purchased, in the amount of $236.05, and agreed to pay the residue of the purchase price of $163.95 within four months from the date of the sale of the property to her. All of the purchase price was paid by her before the institution of this action except a small portion of the lien upon the cash register, which was not due at that time and which is payable in installments of $22.50 per month. Upon the conclusion of the sale, the defendant G. S. Mosrie assigned all his rights under the lease to the plaintiff, Ina Thomason, by an instrument in writing dated October 24, 1946.

Neither of the plaintiffs had any notice or knowledge, prior to the purchase of the property from the defendant, of the sale and the conveyance of the leased property by J. M. Mosrie and wife to Chahin El Mosrie, or of the notice to G. S. Mosrie to deliver possession of the property to Chahin El Mosrie, or of any intention upon the part of J. M. Mosrie or Chahin El Mosrie to take possession of the leased premises during the remainder of the five year term of the lease; and at the time of their purchase from the defendant G. S. Mosrie both plaintiffs believed and relied upon his false and fraudulent representations and statements and made such purchase because of and in reliance upon such representations and statements.

The plaintiffs operated the restaurant on the leased premises from the date of their purchase until they were obliged to vacate the premises in June, 1947. After a notice given by J. M. Mosrie and Chahin El Mosrie to the defendant, G. S. Mosrie, and the plaintiff, Ina Thomason, requiring her to vacate the leased premises on or before January 1, 1947, J. M. Mosrie and Chahin El Mosrie, on March 15, 1947, recovered a judgment against them for possession of the premises and damages for their detention, with interest and costs, in an action of unlawful detainer before a justice of Mercer County. The plaintiff, Ina Thomason, appealed from the judgment of the justice to the Circuit Court of Mercer County and, on June 2, 1947, that court rendered judgment in favor of Chahin El Mosrie against the plaintiff, Ina Thomason, for possession of the premises and $142.50 damages and costs, including a statutory attorney fee of $10. Since the entry of the foregoing judgment the plaintiffs have been unable to rent or procure suitable premises in which to operate the restaurant purchased by them and for that reason were obliged to sell the restaurant, goods, equipment, and fixtures at a great loss and quit the restaurant business.

Both counts of the declaration charge, as damages, that by reason of the false, fraudulent, deceitful and wrongful conduct of the defendant, the plaintiffs have been deprived of all their rights under the lease and of all profits and advantages which would have accrued to them if the false, fraudulent and deceitful statements of the defendant had been true, have been obliged to sell the goods, the equipment and the fixtures at a great loss, and have been required to pay moneys for costs and attorney fees in defense of the action before the justice and on appeal...