DODSON v. McELREATH

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Docket Number

No. 38676.

Attorney(S)

Jas. Stone Sons and A.C. Muir, for appellants. I. As to the question of misrepresentation. Brown v. Ohman, et ux., 43 So.2d 727, 733; H.D. Sojourner Co. v. Joseph, et al., 186 Miss. 755, 191 So. 421; Lewis, et al. v. McLemore, et al., (Tenn.), 10 Yerger 206, 207; McNeer Dodd v. Norfleet, 113 Miss. 611, 629, 74 So. 577, Ann. Cas. 1918E 418; Shwab, et al. v. Walters, et al., 147 Tenn. 638, 251 S.W. 42, 44; Vincent v. Corbett, 94 Miss. 46, 54, 47 So. 611. II. Right of appellants to rely upon representations made by appellee. Brown v. Ohman, et ux., 43 So.2d 727, 729; H.D. Sojourner Co. v. Joseph, et al., 186 Miss. 755, 191 So. 418, 422; Nash Miss. Valley Motor Co. v. Childress, 156 Miss. 157, 163, 125 So. 708; Parham, et al. v. Randolph, et al., 4 How. (Miss.) 435, 451, 35 Am. Dec. 403; Rimer v. Duggan, 39 Miss. 477, 482, 77 Am. Dec. 687; Shwab, et al. v. Walters, et al., 147 Tenn. 638, 251 S.W. 42, 43. III. The right of appellants to punitive damages. Sovereign Camp of W.O.W. v. Boykin, 182 Miss. 605, 181 So. 741. In conclusion the decree of the lower court should be reversed for the following reasons: (1) It is clearly against the law as laid down and settled by the opinion of this Court in the case of Dodson, et al. v. McElreath, 210 Miss. 160, 48 So.2d 861, for the reason that the record shows that appellee never had any property lease, that appellants would not have bought the property and moved into it without such property lease, that appellee cannot deny that he transferred to appellants the good will of the business which carried continuity of place and continuity of time; that appellants were evicted because they had no property lease and that, according to the testimony of appellee himself in Cause No. 37648, they paid at least $1,200 for nothing. If this is not fraud, it is hard to see what can be fraud. (2) The decree of the lower court is against the overwhelming weight of the evidence for many reasons, the conclusive reason being that the undisputed proof shows that Clark, the agent of appellee, participated in the fraud in the presence of appellee himself. J.W.T. Falkner and J.W. Price, for appellee. The cases are clear that charges of fraud must be supported by clear proof which is more convincing than a mere preponderance of the evidence. See Martin v. Gill, et al., 182 Miss. 810, 181 So. 849; Hunt v. Sherill, 195 Miss. 688, 15 So. 426; Corley v. Myers, 198 Miss. 380, 22 So.2d 234. The weight of the testimony in this case is clearly to the effect that appellee never made any representation to appellants at any time that he had a lease on the real property for any definite term. In any event, the chancellor had an opportunity to observe the witnesses on the trial of this case, observe their demeanor and decide the issue of facts involved. Where the lower court has tried such issues of fact and has had an opportunity and did observe the witnesses and their demeanor this Court will not reverse such finding of the lower court, ordinarily. Where there is some conflict in the evidence, Appellate Court will accept the evidence of the successful party and determine from that whether or not the chancellor's decree must be upheld. See Biles v. Walker, 121 Miss. 98, 83 So. 411, motion for final decree sustained 83 So. 753; Powell v. Tomlinson, 129 Miss. 658, 92 So. 583, overruling suggestion of error, 129 Miss. 354, 92 So. 226; Bates v. Strickland, 139 Miss. 636, 103 So. 432. On appeal from the decree of the chancellor, all reasonable inferences must be indulged in favor of appellees, and the presumption on appeal is that the judgment is correct. See Whitney Central National Bank v. First National Bank, 158 Miss. 380, 130 So. 99; W.T. Raleigh Co. v. Armstrong, 165 Miss. 523, 140 So. 791; Columbus G. Ry. Co. v. Bassom, 176 So. 600; Wonderlich v. Gulf States Creosoting Co., 174 So. 550; Favre v. Louisville N.R. Co., 180 Miss. 843, 178 So. 327.

Judges

HALL, J.

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DODSON v. McELREATH.

1. Sales — fraudulent representation — findings of fact on conflicting evidence — review.

In a suit to set aside a sale on the ground of fraudulent representations where the evidence was substantially conflicting and it cannot be said that the decree was contrary to law or to the overwhelming weight of the evidence, the decree will be affirmed.

Headnote as approved by Hall, J.

HALL, J.

This is the second appearance of this case in this Court. On the first trial the lower court excluded all the evidence at the close of complainants' case and entered a decree for the defendants. On appeal therefrom we held that the evidence for complainants established the fact that defendant McElreath did make the false representations charged against him, but we added "This in no way concludes the question under the evidence which may be adduced on another trial." We further said "What the evidence may establish when the cause is fully tried and developed is not before us. We are considering the cause under a motion of defendants to exclude, having in mind the rules pertaining to that procedure." We accordingly reversed the decree of the lower court and remanded the cause for a full development of the facts and evidence for both sides at another trial. Dodson, et al. v. McElreath, 210 Miss. 160, 48 So.2d 861.

On the second trial the record of the first trial was put in evidence by agreement of the parties and the defendants in the lower court then offered evidence which made a clear issue of fact on the question whether the alleged representations were made as to the existence of a lease upon the property. The chancellor found in favor of the defendants on that issue and the complainants have appealed again contending that the decree of the lower court is erroneous as a matter of law and that the chancellor's finding is against the overwhelming weight of the evidence.

Regardless of what conclusion we would have reached if considering the evidence as original triers of fact, we must review the record as an appellate court and when that is done we cannot say that the decree of the chancellor was contrary to law or contrary to the overwhelming weight of the evidence. The decree of the lower court is accordingly affirmed.

Affirmed.

Roberds, P.J., and Kyle, Holmes and Lotterhos, JJ., concur.

DODSON v. McELREATH.

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