23 S.E. 778 | Va. | 1895
delivered the opinion of the court.
The appellant, Alfred Beckley, bought of E. P. Bowyer, one of appellees, on the 28th of October, 1890, two lots in the plan and subdivision of the lands of the Eiverside Land Company at Buchanan, Va., the one lot being numbered 17, in block 5, and the other lot 4, in block 8 ; and contracts under seal were entered into between these parties, stipulating the price and terms of payment as to each lot, respectively. Subsequently, Bowyer delivered to Beckley two deeds, executed by him, dated 28th day of October, 1890, conveying these lots of land, respectively, to Beckley, — each deed embracing this provision : “But this conveyance is made subject to a deed of trust executed by E. P. Bowyer to W. M. Woodson, trustee, conveying said lotto secure the payment to the Eiverside Land Company, of Buchanan, of two negotiable interest-bearing notes, for $300 each, dated the 28th of October, 1890, and payable in 6 and 12 months, respectively; and it is expressly understood that the said Alfred Beckley assumes the payment of said notes, and covenants to indemnify and hold the said E. P. Bowyer harmless by reason thereof.” These deeds were delivered by Beckley to the clerk of the county court of Botetourt county, and duly recorded. After Bowyer’s notes to the Eiverside Land Company became due, and default had been made in their payment, the company recovered judgment against Bowyer for the amount due, and, learning that Beckley was indebted to Bowyer, garnisheed Beckley, and obtained udgment in favor of the company for the amount due by him
The assignment of error to this decree is of a general character ; that is, that upon the facts and law of the case the decree is erroneous. The law of the case is well settled, as shown by the recent decisions of this court. In the case of Wilson v. Carpenter, 21 S. W. 243, Harrison, J., in delivering the opinion of the court, says: “No man is bound by a bargain into which he has been deceived by fraud or. misrepresentations. Whenever a purchaser has been induced by a material misrepresentation of the vendor to buy, he has the right to repudiate the contract, ’ ’ etc. Keith, P., in the case of Improvement Co. v. Brady, says “that the misrepresentations which will sustain an action of deceit, or a plea at law, or a bill for the rescission of a contract, must be positive statements of fact made for the purpose of procuring the contract ; that they must be untrue ; that they are material; and that the party to whom they were made relied
Reverting to the alleged misrepresentations, we will take them in the light of the evidence and in the following order :
(1) As to the bridge that was to be built: It is not shown by the evidence that any statement was made to appellant as to what the character of the bridge was to be, or with what material to be built; but it does show that the bridge was built ata cost of about §8,000, that it is a good and substantial bridge, and answering every purpose that it could have been expected by appellant to serve. We will not, therefore, consider this alleged misrepresentation or inducement further.
(2) As to the industries alleged to have been secured by the*288 Central Land Company to be located on its property at Buchanan : The evidence shows that some of them were established and put into operation ; but, whether this is shown or not, it is impossible that appellant could have been induced to purchase the lots from Bowyer by the alleged misrepresentations as to these industries, because he admits that before he made his purchase or paid any part of the purchase money, he heard Dillon, president of the Central Land Company, publicly announce that no industries had been secured at Buchanan by his company. To avoid the effect of this admission, appellant states that, notwithstanding this announcement of Dillon, he saw men at work on the lands of the Central Land Company, yet does not say that this influenced him in making the purchases. On the contrary, he says that he did not know what to think, — was dumbfounded.
The only remaining alleged misrepresentation to be considered is “that the Shenandoah Yalley Bailroad Company had agreed to locate its tracks, with reference to the lands of the Biverside Land Company and the James river, so as to prevent the overflow of the lots sought to be sold to Beckley.” This allegation, as we have seen, is flatly denied by Bowyer, both in his answer and deposition. To sustain it, we have only the testimony of appellant and his witness Wray, who says that he happened to be with appellant and Bowyer when the lots were shown by the latter on the day before the purchases were made, and his statement of what was said and done does not fully accord with that of appellant. It is true that other land agents at Buchanan, examined by appellant, testify that they made such representations in trying to sell the lots of the Biverside Land Company, but this is entitled to no weight, as it nowhere appears that the representations were made by authority of the Biverside Land Company. Nor could they have aided in inducing appellant to make the purchases he made, as they were not made to him, or in his hearing, so far as the record shows. The testimony given by the appellant is of the most unsatis
Appellant is one of a great multitude to whom came dis