Dortic v. Dugas

Bleckley, Judge.

The complainant and defendant being in partnership with two others in a lumber business, the complainant purchased the defendant’s interest at the agreed price of $4,000 00 cash. For more than four years thereafter he was not aware that there was any fraud or mistake in the transaction. After that lapse of time he filed his bill for a rescission, alleging that the subject matter of the contract was wholly worthless, and that the contract was the result of fraud on the part of the defendant, or of mutual mistake of fact. The jury found in favor of defendant, and the court refused a new trial.

1. The evidence offered by complainant to prove an increase of indebtedness resulting from transactions of the new firm after the defendant had sold out and withdrawn, was, we think, properly rejected. What the firm did after the defendant retired has no bearing on the value of his interest at the time of selling the same to complainant, and does not tend, in any way, to establish either fraud or mistake. The same may be said of the record of a suit and judgment in the United States court, which was also rejected. That suit was in favor of third persons, and against the new firm. The defendant in this cause was no party to it. The pleadings do not show that any of the account sued on was contracted prior to his retirement; but even if they did, the judgment could not be used to establish the truth of the account so as to affect him, he being no party to the record.

2. He is equally a stranger to the order passed by the superior court of Tattnall county, awarding certain money to a mortgage made by the new firm in preference to a judgment against that firm in favor of complainant. That order, as against him, would not establish the existence of the mortgage, much less the date of it or the consideration for which it was made. Even its rank as compared with the complainant’s judgment, the more direct fact which it adjudicates, could not be set up by this mere order to the prejudice of one not a party to it. The truth is, that none of the evidence rejected was at all relevant to the issues on trial, and the two records were moreover objectionable as being adjudications to which the defendant here was a total stranger.

3. Declarations that defendant’s interest was worth $4,000, do not stand upon the footing of statements touching the property, liabilities, credit, income or resources of the firm. They were not representations of a fact, but expressions of opinions only. Defendant valued his interest at $4,000 00 or more, but in the nature of things it must have been a mere estimate, and the complainant ought so to have understood it.

4. Holt, one of the other partners, had full acquaintance with the condition and prospects of the business, or, at all events, his opportunities were ample for that purpose. He said defendant’s interest w;as worth $4,000 00, and defendant, being present, heard and assented to the statement. Let it be conceded that Holt had a different belief, and misrepresented his real opinion; yet, so far as appears, both of the contracting parties were alike ignorant of his duplicity. It is not shown that he spoke at the instance of one of these more than of the other. Indeed, he seems to have volunteered to express his opinion, and there is as much reason for treating him as the complainant’s agent as the defendant’s. Had his misrepresentation related to matter of fact, it might possibly have had a different bearing on the case.

5. One theory of the complainant’s bill is, that an erroneous opinion, common to both parties as to the real value of the interest sold, especially if that interest was absolutely worthless, would be such mistake of fact as would warrant a rescission of the contract and a return of the purchase money. We think, on the contrary, that the very nature of the enterprise touching which the partnership existed, would be full notice that the value of a partner’s share -was contingent and that an estimate of it made in a general way, would partake of the loose nature of conjecture rather than of the definite characteristics of fixed fact. If it were shown that certain specific data were used upon which to calculate value, and that, among these, were some materially different from what they were understood to be, there would be some approach to a case of mistake.

6. Even then, however, it would still be true, as charged by the court, that with equal opportunities for knowing the truth, a party grossly failing to inform himself must take the consequences of his neglect. We think the opportunities of the parties to this contract were near enough equal to make this part of the charge fully" applicable to the case. Had the complainant made such investigation into the details of the business as he might and ought to have made before purchasing, he could most 'probably have protected himself. It was a reckless inattention to his interest to omit using the means fairly within his reach to guide him in forming an independent judgment touching the value of his bargain.

7, 8, 9. The remaining points are disposed of by what is said, at sufficient length, in the head-notes numbered 7, 8 and 9. If the interest which complainant bought from defendant was worthless, and that fact was such a hidden matter as to require "more than four years for the complainant to discover it, there is a strong probability that the defendant never discovered it at all. It is certain either that there- was much mystery in the business or that there was little effort to solve it.

Judgment reversed.