
    TOWNSEND ET AL. v. COCKE.
    (S. C., Thomp. Cas., 153-158.)
    Knoxville,
    September Term, 1858.
    1. MISTAKE. Proof of, must be clear and satisfactory.
    The amount of a note g-iven in pursuance of a contract and in settlement for the price of land, will not be abated for an alleg-ed mistake, except upon clear andi [satisfactory proof. [See Meigs’ Dig., sec. 459, subsec. 3; sec. 468; sec. 526, subsecs. 5 and 6.]
    2. FRAUD. Damages for, abated from unpaid purchase money.
    Where the vendor of real estate is guilty of misrepresentation and fraud in falsely representing- that a well on the premises furnishes a large supply of never failing water, whereas in fact it goes dry every summer and fall, which fact the vendor knows, the vendee is entitled to damag-es to the extent of the injury sustained, and may have the same abated from the unpaid purchase money sued for.
   Wright, J.,

delivered the opinion of the court:

One question here is as to- the payment of $1,039.50 made the 6th of December, 1858, to the Bank of Tennessee, at Athens, and whether by the complainant, William S. Townsend, or by the defendant, Cocke. If by the latter, it is claimed as a credit upon the debt due by him to the complainants; if by the former, it is conceded no credit is to be given on that account. The chancellor was of opinion that this payment had been made byWilliam S-. Townsend, and so decreed, and in. this opinion we concur.

The facts, as connected with this payment, are- these:

On the 24th of November, 1855-, the said Townsend, as trustee to the complainants — who are his wife and children —sold to said Cocke a tract of land in Hamilton county, at the price of $15,000, $2,000 of which he paid in cash, and out of the residue he was to retain a sum sufficient to pay, on the 1st day of October next, thereafter, the amount he then owed said bank, and which, as stated in the agreement between the parties it was believed, would be $6,350, leaving of the original price a balance of $6,650, for which he executed his note, with security, to William S. Townsend, as trustee, to complainants, due on the 15th of October next, thereafter.

The bill is filed to enforce the payment, from the defendant, Cocke, of this last mentioned note, and it is upon this note that he insists he should have the credit.

The said Cocke had purchased this land of the bank on the 4th of December, 1851, at the price of $7,500 — and of this had paid $750 in cash' — and had executed his note for the balance, which was $6,750,'and which he was to pay, with interest, in installments, paying one-tenth thereof annually.

On the 3d of January, 1852, he sold his land to one Perry E. Burch, at a profit of $1,000, who, with William S. Townsend, undertook to pay the debt to the bank and relieve Cocke-therefrom.

On the 9th of June, 1853, the said Burch sold this land, thus incumbered, to William S. Townsend, as trustee for the complainants, and as before stated, they, through their trustee, resold the same on the 24th of November, 1855, to said Cocke, the land, in the meantime, having been very greatly improved by complainant^.

At the time of Burch’s purchase he paid Cocke $500, and he and Townsend executed to him their note for $1,250, which covered the cash installment paid to the bank by Cocke, and the profit coming to him in the resale of the land. And though they failed to pay the bank the installment due in December, 1852, and Cocke had it to> pay, yet they refunded it to him and paid the $1,250 on.the 19th of June, 1853. The installments of 1851 and 1852, and said sum of $9,039.50, the installment of 1853, constituted the only payment which had been made to the bank on the 24th of November, 1858, when complainant resold the land to Cocke. The debt to- the bank, for which the sum of $6,350 was retained by Cocke, was the balance due it upon the sale of this land, $6,313.50, being less than the sum retained.

It is insisted by Cocke that in the settlement with complainants — for the price of the land — on the 24th of November, he made a mistake to- the extent o-f $1,039.50, inf not retaining that sum more, than he did, and in not executing to the trustee of the complainants his note for a less sum, by that amount. In a transaction so easy and simple as this, and of such recent date, it is difficult to believe such a mistake could have been made.

Certainly, the settlement and execution of the note must be held prima facie evidence of their correctness, and incapable of being overturned, save by clear and satisfactory proof of the mistake. This, we think, is not made. We lay out of view the testimony of William S. Townsend as incompetent. He is a witness for complainant, and if allowed to testify, is against the defendant, Cocke. [The testimony would be competent now under sec. 5596, of the Code.] The only other testimony upon which we can rely with any confidence is that of Campbell, the cashier of the bank. He thinks Cocke made one or two payments, besides the sum paid down at the sale-, and his best recollection is that no one else made any payments, and that they were made to- him, but admits that in his testimony he may be mistaken, as he was occasionally absent from the bank. This, we think, is not sufficient to establish'the mistake.

There is another view of the matter, which it seems to us is decisive against ,the defendant, Cocke. By the terms of the contract between him and complainants on the 24th of November, 1855, he could only retain a sum sufficient to pay what was then due the bank, with interest to the 1st of October afterwards. This we have seen he did. He was not authorized to retain- for sums which had heretofore been paid, whether the payment was by him or William S. Townsend.

It is next insisted by the defendant, Cocke, that in the sale of this land to him, the complainants and their trustees were guilty of misrepresentation and fraud, as it regards a well upon said land, by which he sustained damage, which he claims should be abated from the purchase money due complainants. The chancellor, here also, denied'him relief. In this part of the decree we do> not concur. It appears that this well constituted a part of the improvement made by the complainants during their ownership of this land, and that in the sale to Cocke, it was represented as furnishing a large supply of never failing water. This representation, we are satisfied, was untrue, and that complainants and their trustee at the time knew to be so.

The supply of water in the winter and spring months seems to be very abundant, but in the summer and fall the well becomes dry and unfit for use. This was so- in the summer and fall of 1855 and 1856. It appears that in that neighborhood wells are difficult to be had and when of the character this was represented to be, add very greatly to the value of an estate. And there can be no doubt that in the sale to Cocke, this well formed a considerable element in the estimated value of the land, and that he was deceived and imposed upon in regard thereto. We, therefore, think that whatever damage he sustained, because of this misrepresentation, should be abated from the sum demanded by complainants. The damage is fixed by many witnesses in behalf of defendant at $1,000, but inasmuch as complainant’s proof seems not to have- been directed to the quantum of damages sustained by the defendant, Cocke, we think it proper that this matter should be referred for additional evidence.

The defendant, Cocke, claims a further’ abatement for damages alleged to have been done by William S. Townsend to the orchard, dwelling house, and clover lot. But if the trust estate could be subjected to liability for wrongs committed by the trustee, it is a sufficient answer here to say that the proof leaves it uncertain whether the injury complained of took place before or after the purchase by Cocke.

We also think defendant .is not entitled to any abatemeut because William. S. Townsend did not clear up the seventy-five acres of land, upon which he reserved the privilege of taking the timber for two years, because by the terms of his contract he was not bound to do so; and we are not able to see that he failed to leave rail timber sufficient to fence this piece of land.

The decree of the chancellor will be reversed and modified as indicated in this opinion.

Decree reversed.  