While I believe that the decree complained of is erroneous in certain respects, hereinafter noted, and should be reversed, and the cause remanded for the entry of such a decree as I believe the record calls for, I am not in accord with the ruling of the majority which denies to the plaintiffs any relief, and dismisses their suit.
In my opinion, the decision on one question of fact determines the final result in this suit. That question is: Were the plaintiffs and the defendant engaged in a joint *Page 536 adventure from and after the date when the defendant first brought to the attention of the plaintiff, Lively, the matter of the purchase of the oil and gas property involved herein? If they then became so engaged, it was the duty and clear obligation of the defendant to freely and fully disclose to his co-adventurers every fact which might in any way influence their judgment; and any failure to do so operated as a legal or constructive fraud against those from whom such facts were withheld, regardless of whether there was or was not any actual intention to defraud. I understand the majority opinion to concede this point, but the majority members say that the evidence does not preponderate in favor of the plaintiffs on the question of fact presented, and, in effect, that the holding of the circuit court that it did, was plainly wrong.
I do not disagree with the majority holding that fraud, actual or constructive, must be established by clear and convincing evidence. The cases cited by the majority amply sustain that theory. But I am not in accord with the theory suggested, but not expressly approved, that something more than a preponderance of the evidence is required to establish fraud. The evidence considered by the court below is conflicting and on that conflict, and, we may assume, in full recognition of the rule above referred to, it found for the plaintiffs. In my opinion, we are required to sustain its decree under the well-established rule that the holding of a trial court, on a matter of fact, will not be disturbed unless plainly wrong; or, to put the proposition in another form, a finding, determining a question of fact, will not be reversed unless it clearly appears to be against the weight and preponderance of the evidence. Of course, if it so appears, such decree will be reversed. The rule applies to findings and decrees of courts of equity. These propositions are clearly sustained by numerous decisions of this Court cited in 1 Michie's Digest, Va. and W. Va. Reports, 504-5, Vol. 1, Perm. Supp. 168, and citation of particular cases is not considered necessary. *Page 537
That there is clear and irreconcilable conflict in the testimony is beyond argument. The trial court stated in his written opinion that up to a certain point "the testimony was not far from an equal balance", and, of course, in that state of the record the defendant should have prevailed. But the court found other circumstances which, in its judgment, provided the necessary preponderance of the evidence in favor of the plaintiffs. That the trial court may have given undue weight to a particular circumstance is of little importance, if the case is one, where, from all the evidence, different courts might arrive at different conclusions.
I think it important that the rule that findings of trial courts, on matters of fact, be upheld in this Court, unless shown to be clearly wrong, should be followed. I consider the case at bar to be one where, if the decision of the trial court had been for the defendant, we would not be justified in reversing its decree; the decree of the trial court being in favor of the plaintiffs, I would apply the same rule. The case is, in my opinion, one which in a peculiar way, calls for the application of that rule. All of the litigants are men of high standing in their respective communities, and two of them are members of the bar of this Court. The controversy probably arose through honest misunderstandings, rather than any intention to defraud on the one hand, or to make an unjust demand on the other. On highly conflicting evidence an able and experienced Judge has rendered a decree, and I can see no reason for setting aside that decree.
But I do not think the record furnishes any basis for that part of the decree which deprives the defendant of his interest in the oil and gas property involved, but decrees to him the right to retain three thousand dollars as commissions. If there was a joint adventure, then it became the duty of the defendant to disclose to the plaintiffs the price at which the oil and gas property could be purchased. That price was twenty-five thousand dollars. Plaintiffs were advised that the defendant expected to *Page 538 receive at least eight hundred dollars as commissions. Therefore, no injustice would be done plaintiffs if that sum be added to the purchase price, making the total cost of the property twenty-five thousand eight hundred dollars. The property was sold at thirty-two thousand dollars, and, aside from the eight hundred dollars commissions, the defendant's profit in the transaction was sixty-two hundred dollars. Under the finding and decree of the court below, that sum belonged to the joint adventure, and should have been paid into its treasury. When so paid the defendant would have been entitled to one-eighth thereof by reason of his interest in the joint adventure. By a decree to this effect, the same result will be reached as would have been reached had the defendant, in the first instance, fully disclosed the price at which the property involved was being purchased, and the transaction closed without profit to him other than the eight hundred dollars commissions. I would, therefore, reverse the decree of the circuit court and remand the cause for the entry of a decree in keeping with the principles outlined above.
I am authorized to state that Judge Kenna concurs in this dissent.