Cripe v. Wade
Decision Date | 22 November 1927 |
Citation | 261 P. 72,123 Or. 111 |
Parties | CRIPE v. WADE. |
Court | Oregon Supreme Court |
Appeal from Circuit Court, Gilliam County; D. R. Parker, Judge.
Action by C. E. Cripe against C. F. Wade. Judgment for plaintiff and defendant appeals. Affirmed.
Herbert A. Cooke, of Portland (D. N. Mackay, of Condon, on the brief), for appellant.
R. L Sabin, Jr., of Portland (J. D. Weed, of Condon, and Angell Fisher & Sabin, of Portland, on the brief), for respondent.
This is an action upon a promissory note. Three defenses were interposed: (1) Fraud; (2) conditional delivery; (3) failure of consideration. Defendant alleged that he had no plain adequate, and complete remedy at law, and prayed for a decree that the note be delivered into court and canceled as null and void. Upon stipulation, the cause was submitted to the court without a jury. Judgment was rendered in favor of plaintiff for the amount due on the note and for attorney's fees. Defendant appeals.
This note was given in payment for the one-half interest which plaintiff owned in a mercantile business located at La Grove, Gilliam county, Or. Defendant avers that he was caused to execute the note by reason of certain alleged false and fraudulent representations made by plaintiff concerning the value of the stock of merchandise and the existing indebtedness of the business. After the sale was consummated, defendant and McCaughey continued in the operation of the business, and the former was elected president of the corporation.
Relative to the issue of fraud, the record discloses:
In view of this testimony, it is difficult to understand how Wade could have been misled or deceived relative to the value of the stock of merchandise. He inspected the property, and knew, or ought to have known, the value of it. The representations as to value, if made, amounted, under the circumstances, only to an expression of opinion. Ward v. Jenson, 87 Or. 314, 170 P. 538; McCabe v. Kelleher, 90 Or. 45, 175 P. 608; Bell v. Spain, 110 Or. 114, 222 P. 322, 223 P. 235.
Relative to the alleged representation as to indebtedness, we think the evidence greatly preponderates against the defendant in that respect. He not only examined the stock of merchandise, but also made a cursory examination of the books and outstanding accounts of the business. After being informed in a general way as to the extent of indebtedness, he agreed to purchase plaintiff's interest for $2,000.
If defendant was defrauded and seeks a cancellation of the note, he must do equity by restoring, or offering to restore, that which he received by virtue of his contract. It is a condition precedent, when seeking cancellation of an instrument on the ground of fraud, that the other party be placed in statu quo. Davis v. Mitchell, 72 Or. 165, 142 P. 788; 4 R. C. L. 511; 9 C.J. 1207. This defendant has failed to do. We may therefore eliminate from our consideration the issue of fraud.
It is contended by the defendant that the note, with the knowledge and consent of plaintiff, was placed with the Arlington National Bank, with instructions to the cashier that it be delivered to the plaintiff only upon the consummation of the deal and after defendant had been afforded an opportunity to ascertain the truth of the representations made to him relative to the status of the business. It is asserted that the plaintiff obtained possession of the note from the bank by falsely representing to the cashier, Mr. Cox, that the transaction had been closed and that Wade was satisfied. The plaintiff thus explains how he came into possession of the note:
Mr. Cox, in response to the question: "Just what was that conversation, Mr. Cox, that you had with Mr. Wade?" testified:
We are convinced that, at the time of the delivery of this note to the plaintiff, the deal had been consummated to the satisfaction of the defendant, and that the...
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...as mere expressions of opinion upon which a purchaser cannot safely rely. Stovall v. Newell, 158 Or. 206, 208, 75 P.2d 346; Cripe v. Wade, 123 Or. 111, 114, 261 P. 72; Bell v. Spain, 110 Or. 114, 129, 222 P. 322, 223 P. 235. This is especially true when the prospective buyers have or can ob......
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