Burgess v. Corker

• Decision Date: 25 November 1913
• Parties: NELLIE BURGESS, Respondent, v. W. G. CORKER and JOSEPHINE A. CORKER, Appellants
• Court: Idaho Supreme Court

136 P. 1127

25 Idaho 217

NELLIE BURGESS, Respondent, v. W. G. CORKER and JOSEPHINE A. CORKER, Appellants

Supreme Court of Idaho

November 25, 1913

CONTRACT-FAILURE TO COMPLY WITH CONTRACT-RESCISSION-JUDGMENT.

1. Held, that the plaintiff should be charged with the sum of $40.70 for the possession of the land and the benefit of the same during the period she has been in such possession since the time she paid $500 on the 24th day of May, 1911, as an offset against the interest which the court finds in finding of law No. 5; that plaintiff cannot recover as an offset for the taxes she has paid, inasmuch as she was in possession of the land during the time she paid the taxes, and paid the same voluntarily.

2. Held, that conclusion of law No. 9 be modified as follows That the plaintiff should have judgment for the sum of $500 and the costs of this appeal. That the decree should be modified according to the findings as modified in this opinion.

APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. Edward A. Walters, Judge.

An action for the purpose of canceling and annulling a certain contract entered into between the appellants and respondent for selling and purchasing real property. Judgment modified.

W. C Howie, for Appellants.

Respondent cannot have a rescission for a mistake where no fraud has been practiced, except that she offer to pay the defendant for the reasonable use and rental of the premises and restore the possession thereof. (39 Cyc. 1422-1427; Shipp v Wheeless, 33 Miss. 646; Underwood v. West, 52 Ill. 399; Worthington v. Campbell, 8 Ky. Law Rep. 416, 1 S.W. 714; Wood v. Wheeler, 106 N.C. 512, 11 S.E. 590; Leach v. Leach, 4 Ind. 628, 58 Am. Dec 642; Kelly v. Owens, 120 Cal. 502, 47 P. 369, 52 P. 797; Godding v. Decker, 3 Colo. App. 198, 32 P. 832; Buena Vista etc. Co. v. Twohy, 107 Cal. 243, 40 P. 386; Bowden v. Achor, 95 Ga. 243, 22 S.E. 254; Bryant v. Stothart, 46 La. Ann. 485, 15 So. 76; Henninger v. Heald, 52 N.J. Eq. 431, 29 A. 190; Westly v. Diamond, 26 Okla. 170, 109 P. 524.)

If respondent is entitled to any relief, it should be a reformation and not cancellation. (Pierce v. Houghton, 122 Iowa 477, 98 N.W. 306; Davis v. Benedict, 122 Mich. 657, 81 N.W. 576; Topping v. Jenaette, 64 Neb. 834, 90 N.W. 911; Perry v. Sadler, 76 Ark. 43, 88 S.W. 832; Stonesifer v. Kilburn, 122 Cal. 659, 55 P. 587; Allen v. Kitchen, 16 Idaho 133, 100 P. 1052, 18 Ann. Cas. 914.)

The fact that we did not have the title to the other land at the time does not change the rule, providing that we would be able to deliver title at the time called for in the contract. (Kimball v. West, 15 Wall. (U.S.) 377, 21 L.Ed. 95; 39 Cyc. 1410-1412, 1213, par. 5.)

W. T. Stafford, for Respondent.

Mutual mistake as to a material fact will avoid the contract. (Barfield v. Price, 40 Cal. 535; Johnson v. Withers, 9 Cal.App. 52, 98 P. 42; Houser v. Austin, 2 Idaho 204, 10 P. 37; Barth v. Deud, 11 Colo. 494, 19 P. 471; 9 Cyc. 397; Lestage v. Barth, 19 Colo. 671.)

And it is immaterial whether the defendant knew the representation was false. (Best v. Offield, 59 Wash. 466, 110 P. 17; Garrett Co. v. Halsey, 38 Misc. 438, 77 N.Y.S. 989.)

An instrument executed under a mistake of fact will be set aside whether the mistake be unilateral or mutual, there being no meeting of the minds. (Wirsching v. Grand Lodge F. A. M., 67 N.J. Eq. 711, 56 A. 713, 63 A. 1119, 3 Ann. Cas. 442; Farmers' Loan & Trust Co. v. Suydam, 69 Neb. 407, 95 N.W. 867; Bowman v. Besley, 122 Iowa 42, 97 N.W. 60; Singer v. Grand Rapids Match Co., 117 Ga. 86, 43 S.E. 755; Barker v. Fitzgerald, 105 Ill.App. 536; Story v. Gammell, 68 Neb. 709, 94 N.W. 982.)

A mutual mistake as to the boundary or location of a tract of land contracted for affects the identity of the subject matter and avoids the same. (Beard v. Beall (Ky.), 21 S.W. 236; Megie v. Bennett, 51 N.J. Eq. 281, 27 A. 917; Bigham v. Madison, 103 Tenn. 358, 52 S.W. 1074, 47 L. R. A. 267; Moore v. Hazelwood, 67 Tex. 624, 4 S.W. 215; Stille v. McDowell, 2 Kan. 374, 85 Am. Dec. 590; Stong v. Lane, 66 Minn. 94, 68 N.W. 765.)

A defective identification of papers and records in record on appeal cannot be cured after the submission of the case, nor even after the court's attention has been directed to the defect by motion. (Simmons Hardware Co. v. Alturas Commercial Co., 4 Idaho 386, 39 P. 553; Village of Sandpoint v. Doyle, 9 Idaho 236, 74 P. 861; Kootenai County v. Hope Lumber Co., 13 Idaho 262, 89 P. 1054.)

A proper certificate filed after the hearing comes too late, although it might have been granted if presented in the original hearing. (Steve v. Bonners Ferry Lumber Co., 13 Idaho 384, 92 P. 363; Hall v. Jensen, 14 Idaho 165, 93 P. 962.)

STEWART, J. Ailshie, C. J., concurs. SULLIVAN, J., Dissenting.

OPINION

STEWART, J.

When this case came on for hearing counsel for plaintiff presented a motion to dismiss the appeal on the following grounds: 1. That Rule 21 of this court has not been complied with. 2. That the record on appeal has not been authenticated or identified by bill of exceptions, or in any manner, or at all. 3. That the record does not show that the papers contained in the transcript are the papers or copies of the papers used by the court below in considering and deciding the action denying a new trial.

At that time counsel for appellants made a showing to this court, and upon that showing requested that he be allowed to supply a proper identification of the papers that were used by the trial court at the hearing of the motion for a new trial, and the same was signed by Judge Edward A. Walters, the judge who tried the case, and counsel for appellants, W. C. Howie, makes an affidavit and certificate which show clearly the particular papers and records that were used by the trial judge, that they included the instructions to the jury, the interrogatories submitted by the court to the jury, together with the jury's answers thereto, findings of fact, conclusions of law, decree, defendants' notice of intention to move for a new trial, defendants' amendment to notice of intention to move for a new trial, defendants' motion for a new trial and the reporter's transcript of the proceedings, all of which are of the records and files in the case, and were submitted to the judge and by him used on the hearing of the motion for a new trial and constitute all the records and papers used or considered by the judge at such hearing.

In the certificate of the district judge he certifies that all of the records and files in said case were submitted to him and used on the hearing of the motion for a new trial, and constitute all the records, papers and files used or considered, and in this certificate the judge specifies the pleadings and the order of the court overruling the motion for judgment and the overruling of the demurrer, the plaintiff's answer to the cross-complaint, the objection by defendants to trial by jury, the court's instructions to the jury, the interrogatories submitted by the court to the jury, together with the jury's answers thereto, findings of fact, conclusions of law, decree, defendants' notice of intention to move for a new trial, defendants' amendment to notice of intention to move for a new trial, defendants' motion for a new trial and the reporter's transcript of the proceedings. Upon the showing made the motion to dismiss the appeal is overruled. (Steensland v. Hess, ante, p. 181, 25 Idaho 181, 136 P. 1124.)

This action was brought in the district court by the respondent against the appellants for the purpose of canceling and annulling a certain contract entered into between appellants and the respondent dated May 24, 1911, whereby the appellants agreed to sell to the respondent certain real estate for the sum of $ 3,000, the respondent agreeing to pay $ 500 cash down and the balance as follows: $ 500 in six months, $ 1,000 in eighteen months and the other $ 1,000 in thirty months, or November 24, 1913, and upon completion of the payments appellants were to convey to respondent a good title to the land.

The contract also provides: "In the event of a failure to comply with the terms hereof, by the said party of the second part, the said parties of the first part shall be released from all obligations in law or equity to convey said property, and the said party of the second part shall forfeit all rights thereto and all moneys theretofore paid shall be forfeited as liquidated damages, and the said parties of the first part, on receiving such payments at the time and the manner above mentioned agree to execute and deliver to the said party of the second part, or to her assigns, a good and sufficient deed for the conveying and assuring to said party of the second part the title to the above described premises free and clear of encumbrances."

The contract also provides: "It is hereby understood and agreed, however, that whereas the said parties of the first part have not now a deed to said lands, but a contract for a deed, the said property being now in process of administration to straighten the title, it is hereby agreed that in the event the said parties of the first part should from any cause fail to perfect their said title to said lands that the said parties of the first part will refund to said party of the second part all moneys heretofore paid or hereafter paid by her on this contract, including all taxes and other necessary payments made by said party of the second part. And it is understood that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators and assigns of the respective parties, and that the said party of the second part is to have immediate possession of said premises, but when it is fully determined, if it...