D. T. McKeithan Lumber Co. v. Fidelity Trust Co., 223 F. 773

223 F. 773 | 4th Cir. | 1915

PER CURIAM.

[1] Upon the issue of misrepresentation, which is the principal issue in the case, the learned judge presiding at the trial, who1 heard all the witnesses testify, made the following finding:

“The court finds as a conclusion of fact in this case that Mr. Poston and his associates in this case rested upon their own responsibility; that they relied not upon the codefendants in this case as constituting their officers or trustees, but were treating with them in the purchase of this property at arm’s length; that they were intelligent business men, well aware of their rights, and well qualified and able to protect them, and they are not entitled in this case to rely upon any rule of responsibility as that the individual codefendants held towards them any position as quasi trustees. The defendants Bonsai and Barr, so far from that, I find, had nothing whatsoever to do with these negotiations prior to their consummation in the contract of sale and deed of conveyance; that they acted wholly as directors and stockholders for the protection of their own interest personally, and that of their own companies, and they undertook in no wise any responsibility whatsoever to the D. T. McKeithan Lumber Company, or to Poston and his associates, and they are not bound to any liability therefor.”

Passing the point that no exception was taken to this finding, and treating it as involving a question of mixed law and fact, which is sufficiently presented by‘the assignments of error, we need only express the opinion, after careful study of the record, that the conclusion of the District Judge upon this issue of fact is supported by the testimony and should therefore be accepted on this appeal. It is familiar doctriiie that the findings of the trial court in an equity case are presumptively correct, and will not be set aside by an appellate tribunal, unless they are based upon 'an obvious error of law or a serious mistake in dealing with the facts. Gorham Mfg. Co. v. Dry Goods Co. et al., 104 Fed. 243, 43 C. C. A. 511; Vanderbilt v. Bishop, 199 Fed. 421, 117 C. C. A. 652; United States v. Marshall, 210 Fed. 595, 127 C. C. A. 231; Childv. Williams, 212 Fed. 151, 129 C. C. A. 9.

[2] It is the settled law of South Carolina'that in cases of sales of land there must be a specific warranty of quantity, or proof of misrepresentation amounting to fraud, to sustain the charge of failure of consideration. Mitchell v. Pinckney, 13 S. C. 203, 209; Erskine v. Wilson, 41 S. C. 198, 19 S. E. 489; Latimer v. Wharton, 41 S. C. 508, 19 S. E. 855, 44 Am. St. Rep. 739. The deed in this case contains no warranty of quantity, and the trial court, in the explicit and comprehensive statement above quoted, has found that there was no misrepresentation. If this finding be accepted, as we are convinced it should be, there is no ground lor disturbing the decree. Farrar v. Churchill, 135 U. S. 609, 10 Sup. Ct. 771, 34 L. Ed. 246; Farnsworth v. Duffner, 142 U. S. 43, 12 Sup. Ct. 164, 35 L. Ed. 931; Shappirio v. Goldberg, 192 U. S. 232, 24 Sup. Ct. 259, 48 L. Ed. 419.

Affirmed.