95 Ala. 389 | Ala. | 1891
On the 14th day of January, 1887, the appellant contracted for the purchase of the lots upon which
It may be conceded that the cross-bill sufficiently charges such false representations by the agent of the seller as would authorize the purchaser to demand a rescission of the contract of sale. Still, the purchaser is not entitled to a rescission on the facts developed in this case. In the first place, it may be remarked, without going into a discussion of this feature of the ease, that the evidence of the alleged representations, and that they were falsely and fraudulently made, is not altogether satisfactory. The right to the rescission or cancellation of a contract, because of fraudulent misrepresentations, must be established by clear and convincing proof. A court of equity can not grant such relief upon a probability, nor even upon a mere preponderance of the evidence. The representations themselves, and that they were falsely and fraudulently made, must be clearly established. — Bailey v. Litten, 52 Ala. 282. We are not satisfied that the evidence as to the representations alleged in the cross-bill come up to the high standard required in such cases.
We do not, however, rest the decision of the case upon the insufficiency of the evidence in this regard. The right to rescind a contract, because of fraudulent misrepresentations, is one which can not be availed of unless it is promptly asserted. Mr. Pomeroy says: “All these considerations as to the nature of misrepresentations require great punctuality and promptness of action by the deceived party upon his discovery of the fraud. The person who has been
mis
Tbe misrepresentations alleged and relied on in this case were in reference to improvements to be made on tbe property of tbe appellee in the neighborhood of tbe lots sold to tbe appellant. Tbe appellant himself says: “Tbe proposed improvements and tbe representations of tbe president of tbe company, as to what improvements they were prepared to make, and would make that year (1887), induced me to purchase tbe lots. Without these representations I would not have purchased tbe property.” Yet, after tbe time bad elapsed within which be says tbe improvements were to have been made, be recognized tbe contract of sale as binding upon him, and, without objection, so far as tbe evidence disclosed, be paid tbe installment of tbe purchase-money which was due in 1888. It was obvious then that tbe alleged representations as to facts existing at tbe date of tbe sale were not true, and that tbe engagements for tbe future bad not been performed. Still, in view of these de
Affirmed.