Briscoe v. Pittman

• Decision Date: 23 May 1974
• Citation: 268 Or. 604,522 P.2d 886
• Parties: Dorothy M. BRISCOE, Respondent, v. William G. PITTMAN and Ernestine A. Pittman, husband and wife, Appellants.
• Court: Oregon Supreme Court

Page 886

522 P.2d 886

268 Or. 604

Dorothy M. BRISCOE, Respondent, v. William G. PITTMAN and Ernestine A. Pittman, husband and wife, Appellants.

Supreme Court of Oregon, In Banc.

Submitted on Record Dec. 19, 1973.

Decided May 23, 1974.

Walter D. Nunley and Allen D. Drescher, Medford, filed a brief for appellants.

Holmes, James & Clinkinbeard, Medford, for respondent.

HOLMAN, Justice.

Plaintiff brought what purported to be a suit seeking to abate part of the purchase price of real property because of fraud by the sellers. Plaintiff was successful and defendants appealed. Plaintiff has made no appearance in this court.

Defendants' principal contention is that neither the complaint nor the findings of the trial court justify a decree for plaintiff. The complaint alleges, after setting forth the agreement for purchase and sale, as follows:

'At the time of entering into said agreement and immediately prior thereto, the defendants represented to the plaintiff that said real property contained 13.42 acres. Defendant knew said representation was false or recklessly made without knowledge of its truth or falsity.

'Said representation was material to plaintiff and, in reliance thereon, plaintiff entered into said written agreement.

'After taking possession of said real property, plaintiff has discovered that it contains only 10.6 acres.

'WHEREFORE plaintiff prays * * *.'

The findings of fact made by the trial court paralleled the complaint.

A purchaser under an executed contract of sale who has taken possession and who claims to have been defrauded has two kinds of relief available to him: an action for damages or a suit to rescind. Karn et ux v. Pidcock et ux, 225 Or. 406, 410, 411, 357 P.2d 509 (1961). Despite the fact that this case was tried as a suit in equity without objection, it is a simple action for damages for fraud. Unless coupled with a request for genuine equitable relief, the mere request for an abatement of the purchase price is insufficient to bring a case within equitable cognizance. An abatement of the purchase price in a situation such as the present one is merely a means of awarding damages.

In an action for fraud an intent to deceive is a material issue and a necessary element. Musgrave et ux. v. Lucas et ux., 193 Or. 401, 410, 238 P.2d 780 (1951); Conzelmann v. N.W.P. & D. Prod. Co., 190 Or. 332, 350, 225 P.2d 757 (1950). There was no allegation in the complaint that defendants intended to deceive plaintiff nor was there any such finding by the court. Had the only fault been the failure to allege an intent to deceive, in the absence of a demurrer and after judgment we would probably be inclined to overlook the deficiency in the complaint since there could really be no doubt in the defendants' minds concerning the nature of plaintiff's cause of action.

However, where special findings have been made, we cannot assume a non-existent factual finding which is a material issue to recovery. To sustain a judgment based upon the trial court's findings, it must appear that the findings support the judgment on all material issues. Andersen v. Waco Scaffold & Equip., 259 Or. 100, 104, 485 P.2d 1091 (1971); Mullennex v. Draper, 220 Or. 1, 3, 347 P.2d 990 (1960); Larsen v. Martin, 172 Or. 605, 610--611, 143 P.2d 239 (1943). Because the trial judge elected to make special findings and because he did not make a finding on all material factual issues necessary to a recovery, the judgment must be reversed.

The opinion of the Chief Justice would assume a finding by the trial judge of an intent to deceive because the trial judge found that the defendants knowingly or recklessly made a false material statement. Admittedly, a finding of an intent to deceive can be made, not by this court, but, by the trial court from evidence that a false material statement was knowingly or recklessly made. However, though such an inference Can be drawn from such facts, it does Not have to be drawn. Under our cases, as a material issue, the findings of fact must show that such an inference was drawn by making a finding of an intent to deceive. As demonstrated by Larsen v. Martin, Supra, findings of fact must reflect the ultimate facts and not the evidence from which such ultimate facts can be drawn. If it were permissible for this court to infer that the trial judge intended to make a finding on a material issue which he did not say he made and which does not Necessarily follow from other findings, special findings of fact would be valueless and the statutory provision for them would be useless.

Justice Denecke's dissenting opinion would change the law of fraud of 100 years' standing in this state. The present law seems to have worked satisfactorily.

It does not necessarily follow, however, that the case should be dismissed. In State v. O'Malley, 248 Or. 601, 435 P.2d 812 (1968), a contempt proceeding, the trial court found the alleged contemnor in contempt, but failed to make a finding that his failure to do as required was willful. After citing Larsen v. Martin, Supra, to the effect that where the finding of the court was ambiguous it was proper to remand the case to the trial court for entry of new findings, we said, as follows:

'Whether contemnor's failure to appear was willful was the principal issue in the proceeding and no finding was made thereon. Certainly the sum total of the record results in ambiguity. A finding, one way or the other, should have been made. The judgment of the trial court is reversed and the matter is remanded for the purpose of entering a finding on whether contemnor's failure to appear was wilful. If contemnor's failure is found to be willful, a new judgment of guilt and sentence should be entered; if not, the proceeding should be dismissed.' 248 Or. at 610, 435 P.2d at 816.

In the present case the sum total of the record resulted in ambiguity. The court failed to make a finding one way or the other on whether the defendants had an intent to defraud, yet it found for plaintiff in a fraud case. The judgment of the trial court must be reversed and the case remanded for the purpose of entering a finding on whether defendants intended to defraud plaintiff. If a finding is made that defendants did intend to defraud plaintiff, a new conclusion of law and judgment should be entered in favor of plaintiff. If a finding is made that defendants did not intend to defraud, the case should be dismissed with prejudice.

The defendants also contend that the complaint and the findings of fact are deficient because they do not allege the plaintiff's ignorance of the falsityof the statement concerning the amount of the acreage and the plaintiff's right to rely thereon, all as required by Musgrave and Conzelmann. The two above-cited cases list nine requirements to sustain fraud, but they unduly fractionalize the essential elements. As an illustration, it is unnecessary to allege or find the hearer's ignorance of the falsity of a...