Salter v. Aviation Salvage Co.

Anderson, J., delivered the opinion of the court. Appellant, 'S. G. Salter, filed his bill in the chancery court of Clay county against appellees, Aviation Salvage company, a partnership composed of several citizens of Point, for an accounting and to recover the value of ^^^j^house and the flooring in five steel hangars, which [223] appellant alleged were his property and that appellees had wrongfully taken possession of and converted to their use. Appellees answered the bill, denying in part its allegations. There ivas a trial on bill, answer, and proof resulting in a decree dismissing appellant’s bill, from which he prosecutes this appeal. It is. unnecessary to set out the pleadings further than to say, appellant alleged in his bill that for a short time prior, and up to the consummation of a sale of it to ap~ pellees, he was the owner, by purchase from the federal government, of the entire personal property and equipment (with certain exceptions) used by the government in the maintenance of Payne Aviation Field, near West Point; that on the 26th of January, 1920, appellant sold to ap-pellees, for sixty-five thousand dollars, part cash and balance in deferred payments, all said property so bought by him, except the oil house and the flooring in the steel hangars (the property in controversy) ivhich were expressly excepted from said sale; that said sale ivas consummated by appellant making appellees a deed to said property in which said flooring and oil house were expressly excepted, and by appellees in turn, for the purpose of securing the deferred purchase money payments, executing a deed of trust on said property in which also said oil house and flooring in the steel hangars were expressly excepted. Appellees admitted in their answer the allegations of the bill with reference to the execution of said deed and deed of trust, including the omission therefrom of the oil house and flooring. But "they averred, in substance, that said deed and deed of trust did not speak the true terms of the contract between the parties, because it was agreed between them that appellees should take by their purchase all the property appellant took by his purchase from the government, and that, through the concealment and fraud of appellant, said oil house and flooring were omitted from said deed ánd deed of trust. There are certain important outstanding facts in this case about which there is no conflict in the evidence; which [224] facts aré as follows: The government authorized Lieutenant Whitney, Commandant of Payne Aviation Field, asdts agent, to advertise and sell at public auction to the highest bidder, for cash, the personal property and equipment located on and owned, and used by it in the maintenance of said field, with certain- exceptions, among which were the oil house and flooring in the steel hangars, here in question. Accordingly said sale was advertised, the written specifications of which set out said oil house and flooring as among the property that would not be sold. At said sale, which took place as advertised on January 12, 1920, said exceptions were announced to the public by the auctioneer making the sale. McClellan, who to some extent at least, represented appellees in their negotiations for the purchase of the property from appellant was present at the sale, as were most, if not all, of the appellees. Appellant bought the property sold at fifty-three thousand dollars. The sale, under its terms, was required to he confirmed by the government, which was afterwards done. On January 14, 1920, appellant gave appellees a written option to sell them all the property he had bought, at a price of sixty-five thousand dollars. This option was good until midnight January 20th. On January 21st, there was executed between the parties a written contract by the terms of which appellant sold appellees all of said property so bought by him from the government for a consideration of sixty-five thousand dollars, which provided for a cash payment and deferred payments evidenced by notes, and provided for a deed from appellant to appellees to the property, and a deed of trust from the latter to the former, on the property sold, to secure said deferred payments. After the execution of said contract on January 21st, and on the evening of that day, Lieutenant Whitney informed appellant that the government, on account of the large cost it would take to salvage the oil house and flooring in question, had authorized him to transfer and deliver said oil house and flooring to the purchaser; and accordingly they were transferred to the appellant. [225] Taking as true the evidence tending to prove every material fact favorable to the defense of appellees, their case may be stated as follows: On January 26, 1920, when the sale from appellant to appellees was finally closed by the deed and deed of trust above referred to, appellant knew that appellees were ignorant of the fact that the government had transferred to him, as a part of his purchase, said oil house and flooring and he concealed this fact from the appellees; and, for the purpose of preventing appellees from ascertaining that fact, appellant requested Lieutenant Whitney, at the time the latter included said flooring and oil house in the transfer from the government to him, not to inform the appellees of such transfer. And appellant stated to appellees, and the latter believed such statement, that he was selling all the property he had bougtít from the government. Appellees contend, in effect, that all the facts and circumstances of the case show that they bargained with the appellant for the property in question, and that, through his concealment and fraud, it was not included in the contract evidencing the purchase and sale of said property and that therefore they rightfully took possession of it and appropriated it to their own use. They say that fraud consists of anything which is calculated to deceive, whether it be a single act or a combination of circumstances, or acts or words which amount to a suppression of the truth, or mere silence; that fraud is an artifice by which a person is deceived to his hurt. There is no fault to be found with these abstract principles of law, but appellees overlook the correlative principle that, in order to avoid a contract, there must be more than mere fraud; the property charged with the fraud must have owed the party alleged to have been defrauded some duty. He must have been under some obligation to speak when he failed to do so. Mere silence alone is not sufficient. Applying these principles to the present case, we are unable to see how appellees were defrauded by the conduct of appellant. Appellant occupied no relation of trust or [226] confidence toward appellees; on the contrary they appear to have teen dealing at arm’s length. Appellees got exactly what they bargained for. They agreed to pay appellant sixty-five thousand dollars for the property, leaving out the flooring and the oil house, and so expressed it in the deed and the deed of trust finally evidencing the contract.' It is true appellees thought they were buying all the property which appellant had bought, but it is not true that they thought they Avere buying the flooring and the oil house. Concede, for argument’s sake, that they Avere led into that state of mind through the fraud of appellant. The question is :,How were they hurt by such conduct on the part of the appellant? We are unable to see. If they had bought all of the property for sixty-five thousand dollars, and appellant, by artifice of some kind, had withheld from the sale a part of it, Ave would have a different case. As Ave see it, if appellees were to get the property in question, under the undisputed evidence in the case, they would get more than they bought. There seems to be no controversy about the value of the flooring and the oil house. As we understand- the evidence, they Avere sold by appellees and netted them one thousand six hundred and fifty dollars.' It follows from these views that the case should be reversed. Reversed, and judgment here for appellant.