Baylies v. Boom

Citation278 P. 551,40 Wyo. 411
Decision Date18 June 1929
Docket Number1545,1546
PartiesBAYLIES v. VANDEN BOOM, ET AL. [*]
CourtUnited States State Supreme Court of Wyoming

APPEALS from District Court, Uinta County; VOLNEY J. TIDBALL Judge.

Action by Francis A. Baylies against Henry J. Vanden Boom, J. Edwin Tillotson, Bert L. Cook, and others. From the decree, the named defendants appeal, and plaintiff crossappeals.

Affirmed, with modifications.

In case No. 1545 there was a brief for appellants by G. C. Weatherby of Kansas City, Mo., and Dillon, Ellery and Spencer of Cheyenne, and oral argument by John Dillon.

Plaintiff was precluded from asserting that he had relied upon any representation, not contained in the written agreement, with reference to the Drakehurst hotel; he had inspected the property and knew all about it, before making the agreement. The printed descriptive folder of the hotel property, was issued for public distribution, to attract patronage and not for representation as to the nature of the property. Vanden Boom told that to the plaintiff, through his agent, Cook. The agreement specified the representations relied upon. Jones v. Trust Co., 235 F. 649; Equitable Co. v Biggers, 121 Ga. 381; therefore no other representations can be urged in an action for rescission. Cannon v Burrell, 193 Mass. 534; Guth Piano Co. v. Adams, 114 Me. 390; Bruner v. Kansas Co., (Ind. Terr.) 104 S.W. 816; Trust Co. v. Thomas, 67 S.W. 454; Tocstein v. Kisselkar, (Calif.) 164 P. 906; Mining Co. v. Co., 239 F. 976; Moon v. Moon, 102 Kan. 740; Plaintiff inspected the property and had full opportunity to investigate everything in connection therewith. He took possession of the hotel, lived in it for months, and is not entitled to seek rescission in the contract on the ground of fraud. Hirschman v. Hodges Co., 51 So. 550; Walsh v. Schmidt, (Mass.) 92 N.E. 496; Long v. Kendall, (Okla.) 87 P. 670; Johnson v. Miller, (Ill.) 132 N.E. 490; Wilson v. Mills, (Wash.) 164 P. 467; Meyer v. Maxey, (Wash.) 158 P. 995; Carson v. Mikel, (Ia.) 216 N.W. 60; Harwell v. Markin, (Ga.) 41 S.E. 686; Hustad v. Cerney, (Ill.) 151 N.E. 871; Savings & Loan Assn. v. Plummer, (N. J.) 62 A. 583. Plaintiff's action was barred by ratification and laches. Pearson v. Gullans, (Wash.) 142 P. 456; Hamburger v. Berman, (Mich.) 170 N.W. 555; Beeschears v. Callender, (Ida.) 131 P. 15; Scott v. Walton, (Ore.) 62 P. 180; McLean v. Clapp, 141 U.S. 429. The universal rule is that the right to rescind a contract for fraud, must be promptly exercised upon discovery of the fraud. Wood v. Stantenmayer, 56 Kan. 399; Trust Co. v. McIntosh, 68 Kan. 458.

For the respondent in case No. 1545, there was a brief filed by Rosenberger, McVey & Freet of Kansas City, Mo., and P. W. Spaulding, of Evanston, Wyoming, and oral argument by E. H. McVey.

The findings of the trial court (except as to the accounting items challenged by plaintiff) stand as the established facts on this appeal. Farmers State Bank v. Northern Trust Co., 270 P. 163; Quealy L. & L. S. Co. v. George, (Wyo.) 254 P. 130; Carter Oil Co. v. Gibson, 34 Wyo. 53; Huber v. Bank, 32 Wyo. 356; Farmers Bank v. Northern Trust Co., 270 P. 165. (a) The same rule applies to equity cases. Edwards v. Willson, 219 P. 233. (b) Points of error not presented in the brief are waived. Phillips v. Brill, 15 Wyo. 521, 90 P. 443; Ry. Co. v. Lampman, 18 Wyo. 106; Worland v. Davis, 31 Wyo. 108; Riordan v. Horton, et al., 16 Wyo. 364. The memorandum does not preclude plaintiff from relying upon the induced misrepresentations. (a) The Findings of Fact limit the scope of the memorandum to representations made by Bert L. Cook at the first meeting in April, 1926, and the memorandum did not include representations in the printed folder Exhibit 8, in which Vanden Boom joined, nor representations made at the time of the visit when the exchange contract was closed. (b) Parties cannot contract against their own fraud, and the memorandum Exhibit A does not, as a matter of law, preclude plaintiff from setting up, or relying upon the fraud of defendants. Exhibit A has no legal force or effect. Jordan v. Nelson, 178 N.W. 544, 10 A. L. R. 1464; Bent v. Furnald, (1911) 159 Ill.App. 552; Jones v. Minks, (1914) 188 Ill.App. 45; Bonewell v. Jacobson, (1906) 130 Ia. 170, 5 L. R. A. (N. S.) 436, 106 N.W. 614; Edward Thompson Co. v. Schroder, (1915) 131 Minn. 125, 154 N.W. 792; General Electric Co. v. O'Connell, (1912) 118 Minn. 53, 136 N.W. 404; Rabenau v. Harrell, (1919) 278 Mo. 247, 213 S.W. 92; Tiffany v. The Times Square Auto Co., (1913) 168 Mo.App. 729, 154 S.W. 865; Bridger v. Goldsmith, (1894) 143 N.Y. 424, 38 N.E. 458; J. I. Case Threshing Mach. Co. v. Webb, (1916) (Tex. Civ. App.) 181 S.W. 853; Landfried v. Milan, (1919) (Tex. Civ. App.) 214 S.W. 847; Dieterich v. Rice, 115 Wash. 365, 197 P. 1; In Re Courcier etc. Contract, (1923) 1 Ch. (Eng.) 565, (1923) W. N. 89, 67 Sol. J. 484, 39 Times L. Rep. 283; Hoyt v. Chester First Natl. Bank, (Tex. Civ. Appl.) 247 S.W. 637. Plaintiff acted with due diligence. See findings of fact, Pars. 7 and 8, and Conclusions of Law, 6, 7 and 8. Equivocal acts, which do not clearly evince a purpose, with complete knowledge of the fraud, to retain the property as his own, will not defeat the right of a person defrauded to rescind. Griggs v. Meek, (Wyo.) 261 P. 126; Tarkington, et al. v. Purvis, (Ind.) 25 N.E. 879. Plaintiff relied upon the representations made to him by the defendants in executing the exchange contract (findings of fact, paragraphs 5 and 6), conclusions of law, paragraph 9. (a) The inspection was casual, and did not, and could not, disclose the falsity of the inducing misrepresentations, and does not deny redress. 26 C. J. 1162-64; Smith, et al. v. Fletcher, (Wash.) 173 P. 19; Sullivan v. Heibling, 226 P. 803 (Cal.); Rabenau v. Harrell, 278 Mo. 254; Judd v. Walker, 215 Mo. 312; Burnett v. Taylor, 252 P. 790 (Wyo.). The findings of the trial court (except as specifically challenged) stand as the established facts on this appeal. (a) "This court will not disturb the findings and the judgment of the trial court, when the evidence is conflicting, or when the record contains substantial evidence to support the findings and judgment. Farmers State Bank v. Northern Trust Co., 270 P. 163; Quealy L. & L. W. Co. v. George, (Wyo.) 254 P. 130; Carter Oil Co. v. Gibson, 34 Wyo. 53; Huber v. Bank, 32 Wyo. 356. (b) And the same rule applies to equity cases. Edwards v. Willson, 219 P. 233. (c) Points of error not presented in the brief are waived. Phillips v. Brill, 15 Wyo. 521, 90 P. 443; Ry. Co. v. Lampman, 18 Wyo. 106; Worland v. Davis, 31 Wyo. 108; Riordan v. Horton, et al., 16 Wyo. 364.

A careful analysis of defendants' authorities as set forth in their brief, we believe will convince the court, that they are not applicable to the peculiar facts and circumstances of this case, and this is particularly true of what is there offered in support of their contention as to ratification and laches; the doctrine of ratification and laches in rescission cases has been determined by this court in the case of Griggs v. Meek, (Wyo.) 261 P. 126. In that case this court cites the leading case. Tarkington v. Purvis, 128 Ind. 182, 25 N.E. 879, and adopts portions of the opinion therein; the rule is also stated in Black on Rescission and Cancellation, Vol. 2, Paragraph 585.

As to the contention of defendants that plaintiff inspected the hotel property, and that as a matter of law, acted upon his own judgment, it seems sufficient to state, that the effect of the inspection was an issue of fact, and not a question of law. As a question of fact, it was passed upon by the trial court, and its findings are supported by the evidence. Moreover the inspection was casual, and did not disclose the falsity of the inducing representations. Smith v. Fletcher, (Wash.) 173 P. 19, 12 R. C. L. 361; Rabenau v. Harrell, 278 Mo. 254; Bigelow on Frauds, Sec. 523-5; Kerr on Fraud (2d) Ed. 40, 41. This court has approved the foregoing principles. Burnett v. Taylor, (Wyo.) 252 P. 790.

In case No. 1546, for cross-appellants, there was a brief filed by Rosenberger, McVey & Freet, of Kansas City, and oral argument by E. H. McVey.

No brief was filed or oral argument made in Case No. 1546 on behalf of respondents.

In support of plaintiff's cross appeal, we contend that the trial court erred in refusing to allow plaintiff taxes for the year 1927 amounting to the sum of $ 1173.16, or at least a pro rata part thereof. (a) Allowance was made for the taxes for the year 1926, on the ground of defendants' occupancy of the premises. Defendants also occupied the premises during the year 1927, until after the decree of November 16, 1927 and taxes for the year 1927 should be allowed. The trial court erred in refusing to allow the plaintiff recovery of interest on the Federal Bank Loan accruing during the period of occupancy amounting to $ 1,176.86. (a) The accounting did not cover the value of the reasonable use of the property, hence interest occupies the same position as taxes or any other proper expenditures during occupancy by defendants. The court erred in failing to make allowance to plaintiff for the value of his time in the management of the Drakehurst Hotel. (a) The item was not disputed. (b) The court found that the items of account included in plaintiff's amended petition were correct, and that each and all of the items of disbursement therein set forth are allowed as proper items due the plaintiff. $ 1,650.00 covering value of plaintiff's time was included in this statement of allowance, and the Conclusions of Law and the decree, are inconsistent with the Findings of Fact (paragraph 10, 4, p. 94). The court erred in allowing defendants the sum of $ 6,000.00 for work done and materials furnished on the irrigation ditch, because: (a)...

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