McNeer v. Norfleet

74 So. 577, 113 Miss. 611

• Court: Mississippi Supreme Court
• Decided: March 15, 1917
• Status: Published

Opinion

Ethkidge, J.,

delivered the opinion of the court.

The appellees sued out a distress for rent against appellants in the circuit court of Panola county for the year 1914, and seized ninety bales of cotton. This attachment was founded on a contract between J. L. Eoseborough and the appellants, by which the appellants leased from- Eoseborough a plantation in Quit-man county for the years 1914, 1915, 1916, 1917, and 1918 for the sum of three thousand dollars per year. Appellants replevied the cotton, and the appellees, as assignees of the rent contract, filed an avowry under the chapter on Landlord and Tenant alleging that they had a landlord’s lien upon said cotton for.- the term beginning January 1, 1914, and ending- December 31, 1918, and at the time of the said seizure.the appellants were indebted to them in the sum of three thousand dollars, and that they had a landlord’s lien for said amount, and with this plea filed a copy of the lease contract as an exhibit. Thereupon the plaintiffs for replication filed a plea of recoupment, alleging that in leasing said lands it was the purpose of the plaintiff to employ negro tenants and laborers sufficient to farm the land, and it was necessary to furnish supplies, stock, seed, tools, etc., with which to farm said land in cotton and that this purpose was known to J. L. Eoseborough at the time of making the said lease contract, and that, preceding the execution of the said contract, and while the negotiations were pending about said lease, and on the day of the execution of the lease, in order to induce the plaintiffs to enter the said contract, the said Eoseborough and his agents positively stated to the plaintiffs that there was then in said land six hundred acres of cleared land fit, suitable, and ready for cultivation, which would require thirty mules to cultivate; that Eoseborough and his agents were familiar with the lands, and intended for such statements and representations to be believed by the plaintiffs; and that neither of the plaintiffs were familiar with the plantation, and had only seen it for about two hours a few days before; and that they relied wholly on the representations of Eoseborough and his agents for information, which fact Eoseborough well knew; and that Eoseborough, knowing of their ignorance and lack of knowledge with respect thereto, made said representations; and that the plaintiffs relied thereon, and, so relying, secured twenty-six squads of negroes to work said lands in the year 1914, and purchased in the market twenty-one head of mules and horses in the expense of two thousand two hundred dollars; and that they already had ten head of mules, and that said amount of stock would be necessary to cultivate six hundred acres; and that they procured foodstuff for the live stock at an expense of one thousand two hundred dollars, and farming tools, etc., to the extent of five hundred dollars, spent five hundred dollars building roads and drains, and three hundred dollars in clearing up land; and that they furnished their tenants with supplies to the amount of three thousand dollars; and that all of said expenditures were necessary under the circumstances for the cultivation of said farm if it contained six hundred' acres; but that in reality at said time there were only about three hundred acres of land cleared and fit for cultivation, but, relying on said representations, they believed there were six hundred acres; and that the lands were so situated in irregular bodies that they could not determine from a brief inspection tbe amount in actual cultivation, but when they broke the land in the spring of the year, they found that it was short, and they had to discharge part of their tenants, and had to retain more than was needed both of stock and tenants to cultivate the premises actually open and suitable for cultivation; that they did all they could to place their tenants elsewhere, and did all they could to secure other lands and to dispose of all the stock in excess of what was necessary to cultivate three hundred and eight acres in actual cultivation, and .by reason of said facts they were damaged in the sum equal to, or exceeding, the rent contract. Issue were joined on this plea, and thereupon the plaintiffs moved the court to allow them to have the opening and closing both in introducing the evidence and in presenting the argument, which motion was overruled by the court. Defendants thereupon put in evidence the contract, and introduced M. P. Moore, who identified the lease contract, and testified that nothing had been paid upon the contract for the year 1914. Thereupon defendants rested. The appellants (plaintiffs) offered evidence to prove the allegations of their plea set forth, and each testified that the agent of Rose-borough, the original landlord, made the representations contained in the plea, and that he stated, in showing them over the plantation, that there was one hundred and fifty acres of the land which he represented would make a bale of cotton per acre, three hundred acres that would make a half bale per acre, and that one-fourth of the land was, at the time of making the contract (which was in the fall of 1913), planted in corn which could he cultivated in cotton. Plaintiffs offered to prove that, after discovering the land was short as to the six hundred acres (hut only contained about three hundred and eight acres), they went to Dr. Roseborough, the owner, and complained that the land did not contain the six hundred acres which had been represented to them that it did contain, and that Dr. Roseborough stated that it did contain six hundred acres, and that some compromise was discussed and. propositions of compromise made during this inte/ ■ view, but the court excluded these statements on the theory that they were made pending a compromise of differences. The court also excluded much of the evidence offered to show loss on the part of the plaintiff, excluded all the evidence of the expense of repairs, and of building roads and drains, and excluded proof that thej'- would not have made the said drains an incurred the expense if they had known that there was less acreage than four hundred acres, and declined to permit plaintiffs to prove the cost of the mules purchased by them and the price at which they were sold, and prove that they were sold at the best price that could be obtained and at a loss to the plaintiffs; also excluded proof that the plaintiffs went to Norfleet and complained of the shortage of the land, and that Nor-fleet stated to them to go ahead and stay on the place, and that the matter would be adjusted properly, and proof that they went to Senatobia, where Norfleet, G-abbert, Moore, Dr. Roseborough, Dodd, and McNeer were present, and made complaint to them. The court declined to permit them to state what statements were made at that time with reference to this matter, and refused to permit them to prove what was done about the matter at that time, and refused to permit them to prove that Dr. Roseborough at that meeting made admissions as to the shortage of the land.

At the conclusion of the evidence the court instructed the jury on behalf of the plaintiffs, and in the second instruction given for the plaintiffs instructed the jury that it was not necessary for the jury to believe from the evidence, in order to find for the plaintiffs, that Dr. Roseborough or his agent intentionally misled the plaintiffs as to the acreage in cultivation at the time of the lease, but that it was only necessary for the jury to believe that Roseborough or his agents made representations as to the actual acreage.in cultivation which were materially untrue, and that if plaintiffs believed such statement, if one was made, and relied on it in good faith, and was materially damaged, and if the plaintiff was misled as to the actual acreage, the jury should find such damage as the evidence showed to exist on account of such false representations as to the actual acreage of the land.

In the sixth instruction given for the defendant the court charged the jury for the defendant that plaintiffs must satisfy the jury’s minds by a preponderance of the evidence that before the execution of the contract Dr. Roseborough, in person or through agent, represented that there were six hundred acres of land fit and suitable for cultivation on the leased premises, and that such representation was false, and that it was made by Roseborough with knowledge that it was false, or made in reckless disregard of whether it was true or false; and that it was made with the intention of deceiving and defrauding McNeer & Dodd, and that Mc-Neer and Dodd acted on such representations and believed them to be true, and did not rely upon their own knowledge or investigation, and unless the jury did so believe, they should find for the defendant in the sum of three thousand dollars, with interest at six per cent.

In the third instruction given for the defendants the conrt instructed the jury that they could not allow plaintiffs by way of recoupment for or on account of any of the following items asked for in said plea: Price paid for mules and horses, two thousand, two hundred dollars; amount paid for farming tools, plows, gear, wagons, necessary improvements, repairing of tenant houses, roads and drains built, five hundred dollars ;■ amount paid for clearing land, three hundred dollars; salary of J. E. Dodd, eight hundred dollars.

We think it was reversible error to grant the sixth instruction for the defendant, which told the jury that the representations made, or claimed to have been made, must be made with the intention of deceiving and defrauding McNeer and Dodd. Under this instruction the jury may have believed that Roseborough, either in person or by agent, made the statement that the place did contain six hundred acres, and that, notwithstanding he may have made such statement, he may not have made it for the purpose of deceiving and defrauding McNeer and Dodd. It was in direct conflict with the instruction given for the plaintiff as to this feature of the case, and it does not contain an accurate statement of the law. To constitute fraud it is unnecessary, that a statement be made with the intention of deceiving, if it is a statement of fact, or a statement purporting to be a fact, but not true as a matter of fact. It has all the effect, so far as inducing the contract is concerned, as it would have had if made deliberately for the purpose of deceiving.

In Vincent v. Corbett, 94 Miss. 46, 47 So. 641, 21 L. R. A. (N. S.) 85, the court in the fourth syllabus says:

“A statement by an owner of a tract of land that a designated number of acres thereof was cleared is an averment of a fact, and not the expression of an opinion, and, if false, an action of deceit can. be predicated of it.”

In the fifth syllabus the court says:

“Proof of a false statement by defendant touching the area of cleared land in a- tract he was seeking to sell, materially overstating the number of acres, and that plaintiff bought on the faith thereof, makes out a prima-facie case against the vendor in an action of deceit by the vendee, although plaintiff gave defendant credit for an honest mistake.”

In the case of Estell v. Myers, 54 Miss. 174, it was held athat a false statement with reference to the safety of a place from overflow was an inducement to the vendee to purchase, and that the vendee may recoup in a suit to enforce the security for the purchase money to the extent of his injury, and that misrepresentations, even if they were made honestly and the plaintiff did not know they were false, or were not made with fraudulent intent) would enable the party wronged by such representations to prove damages by recoupment. This case is an instructive case, and shows that many of the rulings on the evidence were erroneous in the present case, and shows that the court was in error in excluding from the consideration of the jury evidence of items of damage in the plea of recoupment. Of course the jury are to judge as to the necessity and reasonableness of expenditures made, but should have such information, coupled with other proof, as will enable them to determine the extent of the damage of the party in case they find facts favorable to the plaintiff. See, also, Rimer v. Dugan, 39 Miss. 477, 77 Am. Dec. 687; Davidson v. Moss, 5 How. 673; Parham v. Randolph, 4 How. 435, 35 Am. Dec. 403.

It was error for the court to exclude the evidence as to a statement of fact made by Dr. Eoseborough at the time of the negotiations with reference to adjustment of their differences. While an offer of compromise cannot be shown as being an admission of the party making the offer, still if the party makes a statement of fact, as a fact, it may be proved as an admission even though it was made during the discussion of the «compromise. The rule is stated in Encyclopedia of Evidence, vol. 1, p. 599, as follows:

“ Admission of Fact Competent. — While offers of compromise cannot be proved as admissions, a distinct admission of a fact in the course of negotiations therefor is held admissible” (citing, among other authorities, Grubbs v. Nye, 13 Smedes & M. 443; Garner v. Myrick, 30 Miss. 448, which fully sustain the rule stated).

In reference to the errors assigned on the right to open and close the proof and the argument, it seems that the trial court proceeded under the theory that under section 2864 of the Code the burden was on the landlord in the case. The concluding clause of 2864 reads as follows:

“And on the trial of an issue on an avowry, the burden of proof shall be on the avowant, the landlord, and he shall have the right to open and conclude the argument. ’ ’

As we understand it, this means that when an issue has been tendered'on the avowry, denying the allegation of the avowry, then the burden is -on the landlord or avowant; and, under the pleading, if either the relation of landlord and tenant, or the amount of the contract, or the amount of supplies furnished, is denied, then the landlord must assume the burden and prove his contention; but if the relation be admitted, and the amount of the rent contract for supplies furnished is not denied, no issue is made on the avowry. If the plaintiff undertakes to confess and avoid by an affirmative plea setting up-new matter, and issue is tendered on this plea, then the burden shifts and the plaintiff assumes the burden, and has the right of opening and concluding the evidence and the argument. In the present case the pleadings do not take issue on the amount agreed upon in the contract, nor undertake to reduce or overcome the amount agreed to be paid by an affirmative plea setting forth facts not in denial of the plea of avowry, but setting up new matter upon which' issue was tendered, and upon wMcb the whole case was tried, and the instructions given the jury placed the burden upon the plaintiff to prove the issues of this plea. This question is settled in favor of the appellant by the case of Porter v. Still, 63 Miss. 357, which is quoted with approval in the later case of Timberlake v. Thayer, 16 So. 878. The rule, in the case in 63 Miss. 357, supra, is stated as follows:

. “The party on whom the burden of proof lies, whether plaintiff or defendant, is entitled to open and conclude the argument before the jury. And this is not a mere privilege, but a right determined by law. If there be several issues, and the plaintiff holds the affirmative of any one of them, he is entitled to open and conclude. The party on whom the burden of proof in any cause rests may be determined by considering which would succeed if no evidence were offered by either side, and by examining what would be the effect of striking out of the record the allegation to be proved. The onus must be on the party who, under such tests, would fail in the suit.”

For the errors indicated, the case is reversed and remanded.

Reversed and remanded.