74 So. 577 | Miss. | 1917
delivered the opinion of the court.
The appellees sued out a distress for rent against appellants in the circuit court of Panola county for the year 1914, and seized ninety bales of cotton. This attachment was founded on a contract between J. L. Eoseborough and the appellants, by which the appellants leased from- Eoseborough a plantation in Quit-man county for the years 1914, 1915, 1916, 1917, and 1918 for the sum of three thousand dollars per year. Appellants replevied the cotton, and the appellees, as assignees of the rent contract, filed an avowry under the chapter on Landlord and Tenant alleging that they had a landlord’s lien upon said cotton for.- the term beginning January 1, 1914, and ending- December 31, 1918, and at the time of the said seizure.the appellants were indebted to them in the sum of three thousand dollars, and that they had a landlord’s lien for said amount, and with this plea filed a copy of the lease
At the conclusion of the evidence the court instructed the jury on behalf of the plaintiffs, and in the second instruction given for the plaintiffs instructed the jury that it was not necessary for the jury to believe from the evidence, in order to find for the plaintiffs, that Dr. Roseborough or his agent intentionally misled the plaintiffs as to the acreage in cultivation at the time of the lease, but that it was only necessary for the jury to believe that Roseborough or his agents made representations as to the actual acreage.in cultivation which were materially untrue, and that if plaintiffs believed such statement, if one was made, and relied on it in good faith, and was materially damaged, and if the plaintiff was misled as to the actual acreage, the jury should find such damage as the evidence showed to exist on account of such false representations as to the actual acreage of the land.
In the sixth instruction given for the defendant the court charged the jury for the defendant that plaintiffs must satisfy the jury’s minds by a preponderance of the evidence that before the execution of the contract Dr. Roseborough, in person or through agent, represented that there were six hundred acres of land fit and suitable for cultivation on the leased premises, and that such representation was false, and that it was made by Roseborough with knowledge that it was false, or made in reckless disregard of whether it was true or false; and that it was made with the intention of deceiving and defrauding McNeer & Dodd, and that Mc-Neer and Dodd acted on such representations and believed them to be true, and did not rely upon their own knowledge or investigation, and unless the jury did so believe, they should find for the defendant in the sum of three thousand dollars, with interest at six per cent.
We think it was reversible error to grant the sixth instruction for the defendant, which told the jury that the representations made, or claimed to have been made, must be made with the intention of deceiving and defrauding McNeer and Dodd. Under this instruction the jury may have believed that Roseborough, either in person or by agent, made the statement that the place did contain six hundred acres, and that, notwithstanding he may have made such statement, he may not have made it for the purpose of deceiving and defrauding McNeer and Dodd. It was in direct conflict with the instruction given for the plaintiff as to this feature of the case, and it does not contain an accurate statement of the law. To constitute fraud it is unnecessary, that a statement be made with the intention of deceiving, if it is a statement of fact, or a statement purporting to be a fact, but not true as a matter of fact. It has all the effect, so far as inducing the contract is concerned, as it would have had if made deliberately for the purpose of deceiving.
In Vincent v. Corbett, 94 Miss. 46, 47 So. 641, 21 L. R. A. (N. S.) 85, the court in the fourth syllabus says:
“A statement by an owner of a tract of land that a designated number of acres thereof was cleared is an averment of a fact, and not the expression of an opinion, and, if false, an action of deceit can. be predicated of it.”
“Proof of a false statement by defendant touching the area of cleared land in a- tract he was seeking to sell, materially overstating the number of acres, and that plaintiff bought on the faith thereof, makes out a prima-facie case against the vendor in an action of deceit by the vendee, although plaintiff gave defendant credit for an honest mistake.”
In the case of Estell v. Myers, 54 Miss. 174, it was held athat a false statement with reference to the safety of a place from overflow was an inducement to the vendee to purchase, and that the vendee may recoup in a suit to enforce the security for the purchase money to the extent of his injury, and that misrepresentations, even if they were made honestly and the plaintiff did not know they were false, or were not made with fraudulent intent) would enable the party wronged by such representations to prove damages by recoupment. This case is an instructive case, and shows that many of the rulings on the evidence were erroneous in the present case, and shows that the court was in error in excluding from the consideration of the jury evidence of items of damage in the plea of recoupment. Of course the jury are to judge as to the necessity and reasonableness of expenditures made, but should have such information, coupled with other proof, as will enable them to determine the extent of the damage of the party in case they find facts favorable to the plaintiff. See, also, Rimer v. Dugan, 39 Miss. 477, 77 Am. Dec. 687; Davidson v. Moss, 5 How. 673; Parham v. Randolph, 4 How. 435, 35 Am. Dec. 403.
It was error for the court to exclude the evidence as to a statement of fact made by Dr. Eoseborough at the time of the negotiations with reference to adjustment of their differences. While an offer of compromise cannot be shown as being an admission of the party making the offer, still if the party makes a statement of fact, as a fact, it may be proved as an admission even
“ Admission of Fact Competent. — While offers of compromise cannot be proved as admissions, a distinct admission of a fact in the course of negotiations therefor is held admissible” (citing, among other authorities, Grubbs v. Nye, 13 Smedes & M. 443; Garner v. Myrick, 30 Miss. 448, which fully sustain the rule stated).
In reference to the errors assigned on the right to open and close the proof and the argument, it seems that the trial court proceeded under the theory that under section 2864 of the Code the burden was on the landlord in the case. The concluding clause of 2864 reads as follows:
“And on the trial of an issue on an avowry, the burden of proof shall be on the avowant, the landlord, and he shall have the right to open and conclude the argument. ’ ’
As we understand it, this means that when an issue has been tendered'on the avowry, denying the allegation of the avowry, then the burden is -on the landlord or avowant; and, under the pleading, if either the relation of landlord and tenant, or the amount of the contract, or the amount of supplies furnished, is denied, then the landlord must assume the burden and prove his contention; but if the relation be admitted, and the amount of the rent contract for supplies furnished is not denied, no issue is made on the avowry. If the plaintiff undertakes to confess and avoid by an affirmative plea setting up-new matter, and issue is tendered on this plea, then the burden shifts and the plaintiff assumes the burden, and has the right of opening and concluding the evidence and the argument. In the present case the pleadings do not take issue on the amount agreed upon in the contract, nor undertake to reduce or overcome the amount agreed to be paid by an affirmative plea setting forth facts not in denial of the plea of
. “The party on whom the burden of proof lies, whether plaintiff or defendant, is entitled to open and conclude the argument before the jury. And this is not a mere privilege, but a right determined by law. If there be several issues, and the plaintiff holds the affirmative of any one of them, he is entitled to open and conclude. The party on whom the burden of proof in any cause rests may be determined by considering which would succeed if no evidence were offered by either side, and by examining what would be the effect of striking out of the record the allegation to be proved. The onus must be on the party who, under such tests, would fail in the suit.”
For the errors indicated, the case is reversed and remanded.
Reversed and remanded.