Troxler v. . Building Co.

*58 Connor., J., after stating the facts. This record contains ninety-one pages, with twenty-two exceptions directed to every phase of the. case from the amendment of the complaint to the form of the judgment.. The ease involves not only property rights, but the conduct and character of the parties. It was contested at every point by learned and able, counsel. We have given to the exceptions a careful examination and consideration and will endeavor, as briefly as is consistent with clearness, to give our reasons for the conclusion reached. Both parties submitted a large number of prayers for special instructions, a portion of which were given and others refused. His Honor set aside the verdict on the eighth issue, and an examination of the judgment shows that it is based upon the findings upon the first and second issues. The issues numbered four to seven inclusive were submitted by his Honor to enable him to render a proper judgment if the jury had found for the defendant upon the issue in regard to the alleged fraud, and found that the defendants had broken their contract in regard to the erection of the building. His Honor’s action in this respect was in accordance with the theory of The Code system of practice by which, upon special findings, the Court is enabled to give such judgment, either of a legal or equitable character, as the parties may be entitled to. Under the former system the plaintiff would have been compelled to bring an action at law to recover damages for breach of contract, or, if he wished to avoid the deed for fraud entering into consideration, file a bill in equity. That legal and equitable causes of action may be joined, and that such judgment may be rendered as will protect- the legal and equitable rights of the parties, is well settled. Lee v. Pearce, 68 N. C., 76; Hutchinson v. Smith, 68 N. C., 354; Bank v. Harris, 84 N. C., 206; Benton v. Collins, 118 N. C., 196. It is true that the plaintiff does not, as good pleading would suggest, state, separately his several causes of action, but, if *59 upon the facts stated, the Court can see that more than one cause of action is stated, it will submit such issues as are raised by the pleadings. In this ease the jury having found the first issue for the plaintiff, the other findings, except the second, became immaterial. It therefore becomes unnecessary to discuss the exceptions pointing to rulings of the Court, which apply only to the other issues. The exceptions in regard to the issues and the amendments of tire complaint cannot be sustained. The exceptions to the evidence tending to show that the New Era and the Piedmont companies were not organized in accordance with the statute and that a fraud was practiced upon the State in procuring the charters cannot be sustained. It was not offered for the purpose of attacking or invalidating the charters. This could not be done collaterally. Railroad v. Newton, 133 N. C., 132. It was competent upon the first issue as tending to sustain the charge of fraud and misrepresentation. The contention of the plaintiff is that, by a series of acts and declarations, the defendants Murray and Hay procured the title to his property; that the formation of the corporation constituted a part of what is called a scheme to accomplish their purpose. It is elementary learning that in the trial of an issue of fraud much latitude is allowed, and any fact which tends to show the intent of the parties is relevant and competent. Ruffin, J., in Knight v. Houghtalling, 85 N. C., 17, says: “Fraud rarely lurks in the written agreement of the parties entered into at the end of their negotiations with each other but almost universally precedes it, and consisting, as it must necessarily do in such a case, of acts and declarations merely, it can only be exposed by allowing the conduct of the parties, their words and deeds throughout the entire treaty, to be shown to-the jury. The declarations of Murray were dearly competent. The defendant Hay cannot take advantage of his *60 negotiations leading up to the conveyance without assuming the burden incident thereto'. There is evidence for the consideration of the jury that Hay knew of and ratified Murray’s promise to have the building erected. Lee v. Pearce, supra. There was evidence fit to, be submitted to the jury upon the first issue. The only question, therefore, for our consideration is whether there was error in the instructions given or in. refusing to give those requested. His Honor at the request of the defendants instructed the jury as follows: “The jury are instructed that on the first issue the burden of proof is upon tire plaintiff, and he must satisfy you by the preponderance of the evidence that the execution of the deed and contract was procured by false and fraudulent representations of Hay and Murray; and unless the jury find from the evidence that at the time the representations were made there was no intention or purpose on the part of the New Era Building Company to erect the building described in the complaint on the lot mentioned therein, then the representations were not false and fraudulent and the jury will answer the first issue Ho.’ And at the request of the plaintiff, as follows: “If you find from the evidence that at the time of the execution of the contract to Hay and associates and up to and at the time of the execution of the deed to the New Eira Building Company, that Murray and Hay represented and agreed that they would erect a building of the kind referred to in the written contract on said property, and that the erection of the building was held out to and accepted by Troxler as a part of the consideration moving and inducing him to execute the contract and deed, then I charge you to answer the fourth issue ‘Yes.’ If you should find from the evidence that at the time of the execution of the contract to convey the property, Murray represented that a company could and would be formed which could and would erect said building? when it was not in fact intended to form a company *61 for that purpose, but that the whole matter was a scheme to get the title to this property out of the hands of Troxler, and if you should further find that such misrepresentation moved Troxler to execute the contract, then I charge you to answer the first issue ‘Yes.’ If'you should find from the evidence that at the time of the execution of the contract Murray represented that a company could and would be formed which could and would erect said building, when in fact he did not know and had no reasonable ground to believe such to be the fact, and that this whole matter was being worked to get the title to the property out of the hands of Troxler, and if you should further find that such representations moved and induced Troxler to execute the contract, then I charge you to answer the first issue ‘Yes.’ If you should find from the evidence that at the time of the execution of the contract to convey the property it was represented that a company could and would be formed which could and would erect the building thereon, when in fact it was never intended to organize such a company, but that the whole matter was a scheme to get the title to this property into the hands of W. E. Hay, and if you should further find that such representations moved Troxler to execute the contract, then I charge you to answer the first issue ‘Yes.’ ” The instructions given are simply sustained by the text writers and opinions of this and other courts. If, as the jury find, the plaintiff was induced by the representations and promise of Murray, representing the proposed corporation, that a building was to be erected thereon which would enhance the- value of his other property, and at the time of making the representation and of accepting the deed the parties did not intend to erect and had no means for erecting such a building, or if Murray made the representation having no reasonable ground to believe that such was the intention, and that the purpose of Murray and Hay was by this means to *62 get tbe title to tbe property, be is entitled to relief in a court of equity. If having an honest purpose to carry out their contract the defendants obtained title to tbe lot and were thereafter unable to do so, the extent of tbe plaintiff’s remedy would have been, such damages as be sustained by the breach of tbe contract. It must be conceded that it would be difficult to fix tbe measure of such damages. Mere speculative damages could not have been recovered. Tbe fraud consists in the fact found by the jury that tbe defendants at the time of making the representation and promise, which constituted the inducement to make the deed, did not intend to make good such representation and nromise. It has been frequently held that when personal property has been obtained by such means the vendor may recover his goods. Des Farges v. Pugh, 93 N. C., 31, 53 Am. Rep., 446; Hill v. Gettys, 135 N. C., 373. It is equally well settled that a court of equity will cancel a deed obtained by such means. The charge fully and dearly presents the case in all of its aspects. His Honor properly told the jury to answer the second issue in the negative if they answered the first for the plaintiff. The judgment directs the reconveyance of tire property upon the payment by the plaintiff to the defendants of the amount received by him, less the sum of $216 assessed by the jury as damages, etc., in response to the third issue. This we think correct, and is what the plaintiff expresses his readiness to do. The judgment further directs the sale of the property if the amount is not paid by a day fixed. The equity invoked by the plaintiff is iescission. He is entitled to be put-bad!; in his original position in respect to his property as near'as may be. We do not think that he is entitled to have a sale. In this respect the judgment should be modified. Affirmed.