Anderson v. Laws
Decision Date | 29 May 1945 |
Citation | 176 Or. 468,159 P.2d 201 |
Parties | ANDERSON <I>v.</I> LAWS ET AL. |
Court | Oregon Supreme Court |
Waiver of fraud by subsequent dealings, note, 106 A.L.R. 172 See, also, 24 Am. Jur. 42 37 C.J.S., Fraud, § 69
Before BELT, Chief Justice, and ROSSMAN, KELLY, BAILEY, LUSK, and HAY, Associate Justices.
Appeal from Circuit Court, Multnomah County.
Action by Carl O. Anderson against Roy D. Laws and Clarence A. Wicks for deceit. The defendant Laws moved for judgment on the pleadings and, from the judgment granting the motion, plaintiff appeals.
AFFIRMED.
Charles D. Dolph and Sylvanus Neil Smith, both of Portland, for Carl O. Anderson, appellant.
Hy Samuels, of Portland, for respondent Roy D. Laws.
This was an action for deceit against Roy D. Laws and Clarence A. Wicks. The defendant Laws moved for judgment on the pleadings, which was granted. From that judgment the plaintiff has appealed.
The complaint sets forth a cause of action based on fraudulent representations inducing the purchase by the plaintiff on March 28, 1944, for $8,000.00, of an interest in a business conducted by the defendants as a partnership under the names of Wicks & Slifman. The misrepresentations alleged related to the value of the business. The defendant Wicks filed a demurrer, which was confessed by the plaintiff, and the rights of that defendant are not now involved. The defendant Laws filed an answer in which he denied the allegations of fraud, and alleged affirmatively that the two defendants and the plaintiff associated themselves together for the purpose of forming a corporation to be known as Wicks Construction Company, which was to carry on the partnership business of Wicks & Slifman and to take over the assets of the partnership; that the plaintiff agreed to pay $8,000.00 for his interest in the corporation; that the parties thereafter filed articles of incorporation with the corporation commissioner of the State of Oregon, and agreed to divide the capital stock equally among themselves, and that, before the organization of the corporation, the plaintiff "complained of these defendants that there had been misrepresentations made to him in connection with the sale and purchase of his interest in said corporation."
The foregoing allegations are all admitted in a reply filed by the plaintiff.
The answer further alleges that, notwithstanding the complaints about such misrepresentations the plaintiff, together with the defendants, on April 7, 1944, completed the organization of the corporation, and that "pursuant to the terms of an agreement entered into between the stockholders, the plaintiff drew wages from the corporation in the sum of $300 per month" and "took an active part in the operation and management of the corporation" until about the time of filing the complaint in this action, and that by reason of these facts the plaintiff should be estopped from asserting his present claim. The answer then alleges that about April 7, 1944, plaintiff released his claim by entering into the following agreement with the defendants:
It is further alleged that the defendants took steps to sell plaintiff's stock, but were unable to do so in the time specified in the agreement; that thereafter the plaintiff attempted to sell his stock, but, as far as the defendants were able to determine, had not done so; and that on June 8, 1944, at a meeting of the corporation which the plaintiff did not attend, although he was advised thereof, a resolution was properly adopted to liquidate the corporation in order to fulfill the terms of the agreement of April 7, 1944.
The plaintiff in his reply admitted "that he earned a certain sum of wages for work performed for the defendants", and admitted that he signed the agreement of April 7, 1944, and that he did not attend the corporate meeting on June 8, 1944. Otherwise, the plaintiff denied all the allegations summarized in the preceding paragraph hereof.
The plaintiff admitted in his reply that he signed the agreement of April 7, 1944, which shows on its face that it was entered into after plaintiff learned that he had been deceived. The question for decision is whether by this conduct he waived his right to recover for the alleged fraud.
1. In 24 Am. Jur., Fraud and Deceit, 42, § 214, it is said to be the general rule that "if one induced by misrepresentations or fraud to deal or acquire, or to enter into a contract for the acquisition or use of property thereafter, with knowledge of the deception, receives from the party guilty of fraud some substantial concession or enters into a new contract in respect of the transaction, he thereby relinquishes all right to recover or recoup damages because of the misrepresentations." So far as we have been able to ascertain, the validity of this principle has never been questioned by any court. It may be found enunciated and applied in numerous cases cited in the foregoing text and in the annotation in 106 A.L.R. 172 to the case of Bonded Adjustment Co. v. Anderson, 186 Wash. 226, 57 P. (2d) 1046, 106 A.L.R. 166.
2, 3. It should be...
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...to rescind the policy until July 7, 1971.4 See Briscoe v. Pittman, 268 Or. 604, 607, 522 P.2d 886 (1974), and Anderson v. Laws et al., 176 Or. 468, 472--73, 159 P.2d 201 (1945). In this case plaintiff at first retained the premiums received by it and gave notice that its policy would termin......
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...fraud. The defendants rely on Conzelmann v. Northwest Poultry & Dairy Products Co., 1950, 190 Or. 332, 225 P.2d 757; Anderson v. Laws, 1945, 176 Or. 468, 159 P.2d 201; Weiss and Hamilton v. Gumbert, 1951, 191 Or. 119, 227 P.2d 812, 228 P.2d 800. Assuming that the concessions obtained from R......
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Holland v. Lentz
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Conzelmann v. Northwest Poultry & Dairy Products Co.
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