92 W. Va. 596 | W. Va. | 1922
The plaintiff, a coal operator of eighteen or more years experience, for grounds alleged in an original and an amended and supplemental bill sought, but by the decree appealed from was denied, rescission and cancellation of the sale by and purchase from the defendant F. S. McComas and others represented by him, in November 1920, of 466-2/3 shares of the stock of the Cap Run Coal Company, a corporation or-, ganized by McComas and others to take over and operate a coal property in Lewis County, consisting of a tract of'196% acres owned in fee, known as the Reger tract, and of two other tracts, one containing 155 acres, known as the Crawford tract, and the other containing as alleged 426 acres, known as the Bennett tract, on which two tracts the said company had acquired operating leases.
The defendant McComas was a coal salesman with no experience in the ownership or operation of coal mines, but who in 1920, prior to the alleged sale to plaintiff, knowing of the many opportunities then being offered for fortune in the production and sale of coal, purchased the property in question and organized said company. Having offices in the same building and frequently having business transactions with plaintiff and his various coal companies, the subject of the acquisition by plaintiff of an interest in McComas’s company was taken up between them, resulting in the purchase of the Shares aforesaid. At the time of the contract the stock sold by McComas was held as follows: By F. S. McComas, 101-2/3 shares; by Minnie Lee McComas, 15 shares; by F. D. Barron, 172 shares.; by W. E. Wright, 89 shares; and by S. Gr. Smith 89 shareb. There were at the same time other shares outstanding, _which McComas also represented, as follows: By M. C. Jennings, 130 shares; by Bartlett Conley, 10 shares;
The grounds for rescission and cancellation alleged in the original bill were that in order to induce plaintiff to purchase the 466-2/3 shares and to defraud him McComas knowingly and falsely represented to him:
First; that the said company owned in fee 19614 acres of the Pittsburgh No. 8 seam of coal, of the thickness of five feet and ten inches of clean coal; whereas said company owned not to exceed -20. acres of said Pittsburgh No. 8 seam, and that this acreage did not -contain five feet and ten inches of clean coal with only one parting a quarter of an inch in thickness near the bottom, as represented, but in fact had two separate partings, containing four and six inches of bone coal x*espectively, all of which would have to be removed from the coal to make it merchantable and ready for shipment, andi that in the greater part of said tract there was practically none of the Pittsburgh No. 8 seam, the same thinning down to as low as four inches.
Second; that said McComas, during said negotiations, had likewise knowingly and falsely represented that his company had spent in the neighborhood of $60,000.00 upon its operation, when in fact it had not spent one-third of that amount.
Third; that in consideration of the $70,000.00 which plaintiff undeiffook to pay for said stock, McComas as agent and trustee covenanted to forthwith pay all bills, notes and accounts payable and other indebtedness of said company, as shown by the contract entered into on November .., 1920, exhibit No. 1 with the bill, and had not done so as evidenced by the following: (a) that a suit had been instituted by C. C. Reger, Trustee, against said company to enforce payment of approximately $5,000.00, purchase money on the 196% acres; (b) that as advised, the said Cap Run Coal Company, prior to plaintiff’s purchase of said stock, had ex
Defendants McComas and others answere dthe bill, Mc-Comas in his answer, among other thing's denying ignorance on the part of plaintiff of said purchase money lien, and denying that any suit was begun or threatened, and denying also 'ignorance on the part of plaintiff of said lien in favor of the Indian Run Coal Company, and tendered and filed releases of both liens showing full payment and discharge thereof.
In plaintiff’s amended and Supplemental bill, presented immediately on the filing of defendants’ answers, and pending their motion to dissolve the preliminary injunction awarded him on his original bill, he makes the original bill a part thereof,'but greatly modifies the material charges of false' and fraudulent representations of McComas respecting the character, quantity and quality of the coal and other property of said company:
First; respecting the acreage of the coal, it is alleged that McComas not only falsely and fraudulently represented to plaintiff that said company owned in fee 196% acres of the Pittsburgh No. 8 seam' of coal, as alleged in the original bill, but that in addition thereto owned leases on two other tracts, the Bennett tract of 426 acres, and the Crawford tract of 155 acres, and that each of said tracts had thereon the same seam of coal as the 196% acres, namely the Pittsburgh No. & seam, and of the same thickness, quality and character as- that represented by him to exist on the 196% acres, all of which representations were wholly false and untrue, and known to said McComas to be so; and furthermore that said property does not contain in fact -a single- acre of the Pittsburgh No. 8 seam of coal, but that the coal therein is what is known as
Second; that during said negotiations McComas! furnished plaintiff with what he claimed was an analysis of the' coal upon the Reger -tract, showing among other contents,' 5.82% of 'ash and 2.74% of sulphur, when in fact upon a proper analysis said coal was found to contain over 16% of ash and ■over .... of sulphur, which facts were known to McComas and were unknown to plaintiff.
Third; that pending said negotiations said coal company acting through McComas, had on October 20, 1920, executed to Bennett and others a deed conveying to them.a right of way from the Bennett land over the Reger tract for the purpose of mining the coal from the Bennett land, and therein had also conveyed to said Bennett and others all the coal 300 feet each way of the main entry on the Reger tract and extending through the entire tract, containing approximately eleven acres, of all which plaintiff had no knowledge until after the institution of this suit, and in which deed the said McComas as president of said Company described said coal as the “Elk Lick Coal,” showing knowledge thereof by said McComas, but of which plaintiff remained ignorant, because the same was fraudulently and deceitfully concealed from him.
Fourth; that plaintiff now says that said land contained no merchantable coal other than the Elk Lick Coal; that because of the high percentage of ash and sulphur aforesaid and the general dirtiness thereof, it is impossible to operate the same profitably; that the Bennett lease provided for a minimum royalty of $2,500.00 per year, -and the Crawford lease, which has no coal under it, for a minimum royalty of $1,-500.00. per year, rendering said property a liability rather than an asset, and absolutely worthless.
On the defendants’ side, the answer of McComas individually and as agént and trustee, both to the original and amended and supplemental bills, adopted on information by
The answer also denied all other material allegations of the bill. It is now conceded by counsel on both sides of the case that on pleadings and proofs the issues are narrowed and limited .to the following questions:
(1) The alleged misrepresentation about the acreage of coal.
(2) The alleged misrepresentation about the identity of the seam of coal.
(3) The alleged misrepresentation about the thickness and partings in the seam.
(4) The alleged misrepresentation about the ash contents of the coal.
It is further conceded that the law applicable is that in order to prevail the plaintiff must bear the burden of showing by clear and decisive proof; (a) that the defendant made representations which were material, and that they were false; (b) that when he made them he knew they were false, or made them recklessly and as positive assertions, and not ■as mere opinions; (e) that he made them with the intention that they should be acted upon by plaintiff; (d) that plaintiff believed these representations and acted and relied upon them; (e) that plaintiff thereby suffered injury. Stated
First, then did McComas falsely represent to Jones the acreage of coal? Jones by his original and amended and supplemental bills charges, that McComas represented to him that his company had in each tract not merely the coal underlying the particular tracts mentioned, measured by the outcroppings, but 196% acres of coal in fee in the Reger tract, 155 acres in the Crawford tract under lease, and 426 acres in the Bennett tract under lease. What McComas says he represented was that the company owned in fee and under lease the coal under these several tracts.
What are the facts? In his original bill Jones alleged no misrepresentation as to the acreage except as to the 196% acre Reger tract. In his amended bill he includes the two other tracts under lease. Why did he not include them in his original bill ¶ The omission could hardly be attributable to a bad memory or oversight of astute counsel. In his original bill he did not allege that the coal was not the Pittsburgh No. 8 seam, but that there was only about 20 acres all told of that seam. This fact is pertinent in this connection on the accuracy of plaintiff’s memory and his good faith in his pleadings and testimony. To use Jones exact language on the witness stand: “He said: We own 196% acres of the Pittsburg seam, and we have another tract of 155 acres adjoining, and we are negotiating for a boundary of 500 acres back of the other.” He introduced several other witnesses, employees of his, who corroborated him as to McComas representations as to coal acreage in the 196% acre tract. One of them, Kil-burn, testified: “Q. How did he put it? A. Well, he was describing the property, what he had then, and he said they had 196% acres of coal in fee, and went on describing and telling about his. tipple and his tram roads and side tracks; steel rails, mine ears etc. Q. Did he tell you how much Cap
The most important perhaps of the alleged misrepresentations relates to the identity of the coal as the Pittsburg No. 8 seam. In his original bill Jones did not deny that the coal was of the Pittsburg seam; his complaint was that there ,was not to exceed 20 acres of that seam; it was in his amended and supplemental bill that he first charged that the coal was not of that seam, but of the Elk Lick seam, so-called. At the time he filed his original bill he had been in charge of the property, had operated it, and sold the coal, regarding- it as of the Pittsburg seam, and perhaps marketing it as such; and
The alleged representation as to the identity of the seam of coal and the actual acreage involves the auxiliary question presented as to the persistency of the particular vein
Of course the defendant McComas might be responsible for falsely representing the thickness of the seam and its quality and cleanliness, things he might be expected to know from mining and operating the property. Osborne v. Holt, 92 W. Va. decided at the present term. But how could he know the fact of the persistency of the coal throughout the whole acreage of the tracts involved ? Things one is not expected to kqow should be regarded as mere expressions of opinion Home Gas Co. v. Mannington Co-operative Glass Co., 63 W. Va. 266; Cleavenger v. Sturm, 59 W. Va. 658, 662; 2 Pom. Ep. Jur. (4th ed.), 1813.
■ Lastly, as to the ash content of the coal. The proof was that the analysis relied on was one presented after Jones purchased the stock. When so proven, Jones fell back on the claim that the contents of the written report had.been communicated to him verbally by McComas before his purchase. McComas denies this. Moreover, the evidence shows that it makes all the difference in the world whether the test is made from a sample taken .vertically through the entire seam of the coal or from a particular quantity of the coal mined and ready for market and with the impurities eliminated. Analy-ses made after suit by experts showed larger ash content than that shown by the analysis produced by McComas, but the difference, it is conceded, may be accounted for by the different methods and manner of selecting the coal'for analysis.
Two well established legal principles applicable to the main facts in the case, it seems to us, would bar plaintiff from relief by rescission and cancellation. The first is, that though one may rely on the particular representations of the seller, yet if he undertakes to inform himself from, other sources, as. by matter of personal investigation, and the seller has done nothing to prevent full inquiry, he will be deemed to have relied upon his own investigation rather than upon the representation of the seller. 20 Cyc. 32-33; 39 Cyc. 1293; 13 C. J. 391-392; Cork v. Cook, supra,; Southern Development Co. v. Silva, supra; Farrar v. Churchill, 135 U. S. 609. Jones made «no contract nor took any steps to conclude his purchase of the stock until he had made his own investigation of the property, and he expressed himself satisfied.
■ The other principle is that where the parties have equal means of information, so that with ordinary diligence or prudence either may rely on his own judgment, they are presumed to have done so, or if they have not done so, they must abide the consequences of their own folly or carelessness. Lake v. Tyree, (Va.), 19 S. E. 787; Ludington v. Renick, 7
Our conclusion, therefore, is to affirm the decree.
Affirmed.