145 Ark. 492 | Ark. | 1920
(after stating the facts). The testimony in this case is very voluminous on account of the witnesses having been examined and cross-examined at great length. We have endeavored to set out the salient features of the testimony in order to properly discuss and determine the correctness of the finding of fact made by the chancellor.
It will be observed that one of the grounds upon which a rescission of the contract is based by the defendants is that the plaintiff represented that the Reiehter house had a good well of water and was free from leaks, when in truth and in fact the well of water was not fit for use and the house leaked very badly. The defendants moved on the place on the 15th day of October, 1918, and stayed there 'gathering the crop until the 18th day of November, 1918. Only a few days after they moved there they talked with Reiehter and found out that the well of water could not be used and that the house leaked very badly. Yet they continued to reside there for about a month thereafter. The defendants also complained that Brown falsely represented to them that he would turn over to them the house and ground occupied by Reiehter, when in truth and in fact he knew that Reiehter was claiming to have the same leased for the year 1919. Brown began a suit against Reiehter based upon the controversy between them in regard to this piece of land and recovered possession of it shortly after the first of January, 1919. In truth the lawsuit between Reiehter and Brown was not for the possession of the land itself, but for damages growing ont of the breach of the contract of Brown with Reichter.
On the question of false representations on account of the land overflowing, but little need be said. The defendant’s own testimony only goes to the effect that sometimes the surface water from the higher ground around the place spread over the land to a certain extent. According to the testimony of Mrs. Neva Walden, the owner of the land, the surface water never did come over the land when the ditches were kept cleaned ont.
The defendants also claim that Brown made false representations to them about the cultivation of a pecan orchard on the place with regard to the amount of work he had done. Brown denies this. There was some evidence introduced by Brown tending to show that the defendants abandoned the contract because they found out that the crop was not yielding as much as they thought it would when they purchased it.
In testing the correctness of the findings of fact made by the chancellor, it is proper to weigh the testimony in connection with all the attendant circumstances. Hence it is proper to consider the fact that the defendants found out from Reichter all about the condition of his house and'well and the claim made by him that he had the house and ground occupied by him leased for .another year a'few days after they moved on the place and that they continued to reside there for four weeks longer gathering the crop.
It is a matter of common knowledge that it is to the best interest of all concerned that the crop should be gathered speedily. Hence the fact that they waited four weeks during the time that the crop was being gathered, and that they continued to gather it is a salient fact to be considered in testing the bona fides of their claim for a rescission of the contract on the ground of false representations.
They also claim that Brown made false representations to them about the value of his lease contract for the year 1919. His representations about the value of his lease contract was only a matter of opinion, and was not the representation of a matter of fact.
We have carefully read and considered the record and, when all the surrounding circumstances are considered, we have reached the conclusion that the finding of the chancellor is not against the preponderance of the evidence, and, under the settled rules of this court, must be affirmed, except as to a mistake in the amount of the judgment which is conceded by counsel for the plaintiff. Counsel for the plaintiff concedes that the judgment should have been for the sum of $370.07 with interest thereon at the rate of 10% per annum from October 7, 1918, instead of $385. Counsel claims that, had his attention been called to the matter, this correction would have been made in the court below, and that on this account the plaintiff should not be taxed with the costs of the appeal. Counsel is correct in this contention.
It is well settled in this State that costs will not be awarded where the error could have been corrected by motion in the lower court. It is only where a mistake in the judgment in the court below works a substantial injury to the rights of appellants that the appellees will be taxed with the costs of the appeal. Euper v. State, 85 Ark. 223; Stuckey v. Lindley, 84 Ark. 594, and Booker v. Blythe, 90 Ark. 165.
The remittitur will be entered as offered by counsel for the plaintiff, and, when so entered, the judgment will be affirmed.
It is so ordered.
