Bradfield v. Elyton Land Co., 93 Ala. 527

Bradfield v. Elyton Land Co.

93 Ala. 527 | Ala. | 1890

COLEMAN, J.

— The purpose of the bill was to obtain the ¡rescission oí a contract entered into for the sale of land. The principles of law necessary to be considered for a proper decision of this cause are familiar, and of easy application to the facts as they appear in the record.

So far as the representations alleged to have been made by IT. M. Caldwell, that said “Belt Line Nailroad was located on said Tenth avenue, and was then being built and operated as *529a permanent road,” and that such representation “amounted to an engagement, and formed part of the consideration, and an addilional consideration for the purchase of said lots, and materially induced him to ma^e the same,” as averred and relied upon in the amendment to the original bill, it is sufficient to say, that if such “engagement” to operate the road permanently was made, it rested entirely in parol, and was obnoxious to the statute of frauds, and therefore null and void.

Furthermore, if Caldwell represented that the railroad would be “permanently operated” in the future on said avenue, and if the statement amounted to less than an “engagement,” the representation necessarily “consisted in opinion.” “That, to be the basis of a legal right in any case, must be knowingly false, and uttered with intent to deceive.” “Less than intentional deception, in such conditions, gives no right of action.” Griel v. Lomax, 89 Ala. 427; Montgomery So. R. R. Co. v. Matthews, 77 Ala. 366. The averments of the amended bill are wholly insufficient, in failing to charge intentional deception, and the proof is insufficient to sustain the charge, if it had been made.

• Without discussing the inconsistent allegations of the bill, as it remained after amended, let us examine the other misrepresentations relied upon for relief, and also see how they are sustained by evidence. If the misrepresentations consist in the statement that the belt road would be built on said avenue, and the failure to build, as averred in the original bill, the allegation is not proven; for it is admitted in the amendment to the bill, and fully proven by the evidence, that the road was completed and operated on said avenue, as alleged in the original bill that Caldwell represented it would be. If the representation complained of was, that the belt road would greatly increase the value of property on its line, such representation is admitted to be true, and is positively sworn to as a fact by the complainant himself. Moreover, such representation by Caldwell, as to the future effect of the enterprise upon the value of adjacent property, was as to a fact, or result, “equally open to both parties,” and, for this additional reason, does not give compláinant a cause of action (77 Ala. supra; Lake v. Security Loan Asso., 72 Ala. 207); and certainly was no more than the expression of an opinion. — Cook on Stock and Stockholders, § 146. We have already disposed ot the relief sought under the additional averment in the amendment to the bill.

Courts of equity will not force fraud. It must be proven, or facts clearly proven from which fraud can be legitimately *530inferred. No other witnesses in regard to the statements and representations averred to have been made by Caldwell, at the time the terms of the sale were agreed upon, have been examined, except complainant for himself, and Caldwell for the defendant. Every and Bach allegation of fact in the bill from which fraud could be legitimately inferred, conceding the facts have been well pleaded, have been specifically denied in the answer. Every such fact testified to by complainant, has been contradicted by Caldwell. So far as the record shows, both witnesses are equally credible. Under such conditions, it can not be said that complainant has established the averments of his bill.

It is unnecessary to consider the many questions so elaborately discussed in the opinion of the chancellor and briefs of counsel.

The decree of the court below is affirmed.