Cleveland v. Mochel

• Decision Date: 12 July 1929
• Docket Number: 5261
• Citation: 48 Idaho 37,279 P. 410
• Parties: CHARLES E. CLEVELAND and CHRISTINE CLEVELAND, His Wife, Appellants, v. LEONARD E. MOCHEL and BLANCHE E. MOCHEL, His Wife, and AMERICAN BANK AND TRUST COMPANY, a Corporation, Respondents
• Court: Idaho Supreme Court

279 P. 410

48 Idaho 37

CHARLES E. CLEVELAND and CHRISTINE CLEVELAND, His Wife, Appellants, v. LEONARD E. MOCHEL and BLANCHE E. MOCHEL, His Wife, and AMERICAN BANK AND TRUST COMPANY, a Corporation, Respondents

No. 5261

Supreme Court of Idaho

July 12, 1929

APPEAL AND ERROR-REFUSAL OF AMENDMENT TO COMPLAINT-TRIAL-FRAUD IN SALES-RESCISSION-FINDINGS OF FACT AND CONCLUSIONS OF LAW.

1. In action for rescission of contract for sale of land, refusal to permit amendment of complaint to allege mistake as to boundary alleged to have been caused by fraudulent representations of defendant held not prejudicial, in view of finding that no false representations had been made.

2. In action for rescission of contract for sale of land on ground of fraudulent representations, finding that at time of contract no fraudulent representations were made and that no frauds were perpetrated on plaintiffs was a finding of ultimate fact and not merely a conclusion of law.

3. Where findings of fact and conclusions of law are commingled they will not be disturbed if ultimate facts are found.

4. Findings of fact by trial court should be liberally construed.

5. The trial court is charged with duty of resolving conflicts in evidence.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

Action for rescission of a contract for the sale of land. Judgment for the defendants. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Tannahill & Leeper and R. E. Durham, for Appellants.

The court abused its discretion in not allowing the proposed amendment. (Snowy Peak etc. Co. v. Tamarack etc. Min Co., 17 Idaho 630, 107 P. 60; Harrison v. Russell &amp Co., 17 Idaho 196, 203, 105 P. 48.)

The trial court is required to enter its decision in writing, including the ultimate facts found and conclusions of law. (C. S., sec. 6866; Caldwell v. Wells, 16 Idaho 459, 101 P. 812; Kemmerer v. Pollard, 15 Idaho 38, 96 P. 206.)

The purported findngs of fact in this case are only conclusions of law. (Darling v. Miles, 57 Ore. 593, 111 P. 702, 112 P. 1084; Jorgenson v. Stirling, 35 Idaho 791, 209 P. 271; Cargnani v. Cargnani, 16 Cal.App. 96, 116 P. 306.)

The decision is against the law, as all the material facts are not determined. (Sarret v. Hunter, 32 Idaho 536, 185 P. 1072; Turner Agency v. Pemberton, 38 Idaho 235, 221 P. 133.)

Erb & Erb, for Respondents.

The court did not err in refusing to allow the amendment. The amendment may be allowed or rejected in the discretion of the trial judge, and unless there is a clear abuse thereof, his action will not be disturbed. (C. S., sec. 6726; 1921 Sess. Laws, chap. 235, p. 526; Webster-Soule Farm v. Woodmansee, 36 Idaho 520, 211 P. 1090; Cady v. Keller, 28 Idaho 368, 154 P. 629; Small v. Harrington, 10 Idaho 499, 79 P. 461.)

The amendment is immaterial for the reason that the evidence which might have been introduced under the proposed amendment might as well have been introduced under the original complaint; otherwise the amendment would not be allowed, as it would be inconsistent. (31 Cyc. 371; Fralick v. Mercer, 27 Idaho 360, 148 P. 906; Lowe v. Long, 5 Idaho 122, 47 P. 93; Harshbarger v. Eby, 28 Idaho 753, Ann. Cas. 1917C, 753, 156 P. 619.)

GIVENS, J. Budge, C. J., and T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.

OPINION

GIVENS, J.

In May, 1927, appellants agreed to purchase from respondents a certain dwelling-house in Lewiston, to pay a portion of the purchase price at that time and the balance at certain future dates. Thereafter and in the same month appellants entered into possession. About the middle of August, appellants notified respondents that they elected to rescind the contract, alleging fraudulent representations, and thereafter instituted this action to rescind and for the return of the money which they had paid.

Appellants assign as error the refusal of the trial court to permit an amendment urged to conform the pleadings to the proof involving the east boundary of the property. The amendment, while alleging that appellants were mistaken as to the east boundary, in effect stated that this mistake was caused by the fraudulent representations made by respondent Leonard Mochel. Neither in the amendment nor otherwise did appellants seek to withdraw from the complaint the allegations of fraud contained therein. That appellants did not seek by the amendment to change the essentials of the cause of action as sounding in fraud is strengthened by the statement in their brief as follows:

"Neither can it be said that the amendment presented a new cause of action or that respondents had been misled or deprived of introducing testimony which might have been desired in consequence of the amendment for the reason that the amendment was merely a precautionary measure and to expand and make more definite and certain the allegations of the complaint. The elements of the issue and all but a concise statement of the amendment are contained in the original complaint (folios 8-11 and 12) and is in accordance with the theory of appellants in their efforts to rescind the contract."

The allegations in the complaint at folios 8-11 and 12 are in substance that the defendants made false representations known to them to be false and enumerating the particulars wherein they were false and that said representations were in reference to material matters. If the amendment had been allowed, still an integral part of its effectiveness would have been the question of fraud and false representations. As indicated hereafter, the court found that no false representations had been made. Hence it is not apparent how the appellants were injured by the refusal of the trial court to permit an amendment.

Conceding that rescission might have been allowed for a mistake of fact on the part of one of the parties not induced by fraud on the part of the other, appellants do not contend that this amendment was of this nature.

It is apparent that appellants did not intend to disassociate the mistake of fact as urged in the amendment from the fraudulent representations, and since the court found that no fraud was perpetrated, the effect of such finding was that had the amendment been...