51 W. Va. 30 | W. Va. | 1902
This is an appeal from a decree pronounced and entered by the circuit court of Wayne County, December 11, 1900, in a suit in chancery wherein the Fearon Lumber and Veneer Company, an Ohio corporation, is plaintiff and-W. P. Wilson, Otis Wilson and Fannie Wilson are defendants. The object of the suit was to rescind an executed contract of sale of real estate and compel repayment to the vendee of the purchase-money amounting to one thousand one hundred and seventy dollars with interest thereon from the time it was paid, one dollar and twenty-five cents recording fee paid by the plaintiff and one hundred and fifty-four dollars and thirty-five cents for expenses incurred by the plaintiff in consequence of said sale.
A thorough examination of the record leads to the conclusion that the conveyance was made and the purchase-money paid under a mistake of the parties as to the identity of the land, by reason of which the plaintiff did not obtain the land its agents had good reason to believe it was buying. They went upon and examined one tract of land, believing it to be the property of the defendants with whom it was negotiating and the land said defendants were offering to sell, but after the deed was made and the contract of purchase fully executed, it was found that no part of the land so examined _and believed to be the land described and conveyed in the deed was within the boundaries designated in the deed. The plaintiff was engaged in the business of manufacturing and selling lumber and veneering, having its principal office and plant located at the city of Ironton, Ohio, and the inducement to the contract was the belief that the land of the defendants had valuable timber on it suitable for manufacturing purposes. The land examined by its agents was land of that character, but the land actually convoyed had no timber of any consequence on it and was wholly worthless to the plaintiff in that respect. H. M. Runyon, an agent of the company, having been informed that the defendant, W. P. Wilson, was the owner of a tract of timber land, went over what was supposed to be the land with one Edward Meeks, who had some knowledge of the location of the Wilson land. Being satisfied with the land shown-him by. Meeks, he then, sought Wilson and contracted with him for and on behalf of the plaintiff to purchase the land at the price of six dollars per acre, making the total contract price one thousand one hundred and seventy dollars, the tract being represented to contain one hundred and ninety-five acres. This contract being reported immediately to the company a check for the sum of one hundred dollars was sent to Wilson on the next day, September 13, 1899. On the check was written a memorandum that said sum was payment on one hundred and ninety-five acres of timber land on the head of Moses creek bought at six dollars per acre, “the same showed to II. M. Runyon, September 12, 1899.” The agreement was that the residue of the purchase-money should be paid when the land should be surveyed and the deed made, and it was agreed that in a short time thereafter the parties
Soon after the purchase was completed rumors were afloat to the effect that the land conveyed to the plaintiff was not the land it had contracted for but was another tract of land upon which there was no timber. Hearing this Fearon telegraphed Wilson to hold the check and notified the bank not to pay it and sent Runyon to see Wilson. Runyon claims that Wilson as-■surred him that there was no foundation for the rumors and that ho would guarantee the land to be all right and he thereupon, telegraphed Fearon to that effect and the check was paid, but Wilson denies that he made such statement to Runyon and says, in substance, that Runyon rather apoligized for coming to him about the rumors and said he knew the laud was dll right and
From this state of facts it is manifest that the court erred in dismissing the plaintiff’s bill and refusing it any relief. If it be conceded that Meeks did not act as the agent of Wilson in the sale of the land, the case still falls within the well settled principle that where by reason of a mutual mistake as to a matter of fact the vendee failed to get by his deed substantially what he contracted for he is entitled to a rescission of the contract although the contract was executed. “Where, in an agreement, a mutual mistake is made, by both parties, in a matter which is the cause and subject of the contract, that is, in the substance of the thing contracted for, no fraud being imputable to either party; such mistake is good ground in equity for rescinding the agreement, even after it has been fully executed.” Glassell v. Thomas, 3 Leigh 113. The case out of which this proposition was evolved was one in which both contracting parties resided in Virginia.. One of them owned a tract of about four hundred acres of land in the county in which he resided. The other owned two thousand acres situated in Kentucky. Having entered into negotiations for the sale and purchase of their land, respectively, by and to each other, Glassell, the owner of the Kentucky land, in the year 1814, sent his son to Kentucky to ascertain the location of the land and was, by mistake, shown certain lands belonging to another party, a plat of which he brought home and delivered to his father. Thereupon the two parties
This principle is adhered to in other states. In Sweezy v. Collins, 36 Ia. 589, there was a misrepresentation as to quantity, but it was not fraudulent, the vendor himself being mistaken as to the quantity of the land. It was represented to contain seventy-five acres but in fact contained only about sixty-four and the court held that it was a case o f mutual mistake and the vendee was entitled to relief. In Montgomery v. Shockey, 37 Ia. 107, relief was given upon the same principle, the land conveyed being vastly different in character and location from what it was represented to be. From the evidence the court did not feel warranted in saying that the misrepresentation was fraudulently made and granted relief upon the ground of mutual mistake. The case of Larsen v. Burke, 39 Ia. 703, was one in which the purchaser supposed he was obtaining certain town lots, being nice lots, high, nearly level, overlooking the
Such being the law it becomes practically unimportant and immaterial whether Meeks was or was not the agent of Wilson, although it is laid down in McKinnon v. Vollmar, 6 L. R. A. 120, and in Law v. Grant, 37 Wis. 548, that if the wrong land is pointed out to a purchaser by the vendor’s agent,- the purchaser is entitled to rescind his contract but is not entitled to do so- if the person so pointing out the wrong land is not the agent of the vendor. It may well be doubted whether this position is in harmony with the Virginia cases cited. However, the evidence leaves no room for two opinions as to whether Meeks was the agent of Wilson. As already shown he testifies that Wilson had employed him to show the land to intending purchasers and that he so informed Bunyon when the latter first came to see him about it and also that Wilson had in a way paid him fifteen dollars for his services. Wilson delivered up to Meeks’ son a note for fifteen dollars in the presence of Meeks himself and Meeks says the consideration of that surrender was his services in so pointing out the land. Wilson denies that Meeks was his agent but does not deny the payment to which Meeks testifies. It is wholly unimportant whether Meeks knew his representation as to the location of the land was false. Ignorance in such case will not prevent the misrepresentation from affording ground for the rescission of the contract. The inquiry in such case is not whether the vendor or the agent representing him knew the representation to be false, but whether the purchaser believed it to be true, relied upon it and was mislead by it in entering into the contract. Grim v. Byrd, 32 Grat. 293; Linhart v. Foreman’s adm’r, 77 Va. 540; Lowe v. Trundle, 78 Va. 65.
These principles make it clear that the decree of the circuit court is erroneous. It must be reversed and the cause re
Reversed.