Crouch v. Butler

• Decision Date: 07 September 1926
• Citation: 119 Or. 344,248 P. 849
• Parties: CROUCH ET UX. v. BUTLER.
• Court: Oregon Supreme Court

248 P. 849

119 Or. 344

CROUCH ET UX. v. BUTLER.

Supreme Court of Oregon

September 7, 1926

Department 1.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Action by Lafayette F. Crouch and wife against William J. Butler. Decree for defendant, and plaintiffs appeal. Affirmed.

W. L. Patterson, of Baker (T. T. Bennett and Bennett & Swanton, all of Marshfield, on the brief), for appellants.

Charles A. Hardy, of Eugene, for respondent.

BURNETT J.

The plaintiffs, husband and wife, aver, in substance, that they purchased of the defendant a tract of land in Lane county Or., which they describe by legal subdivisions in part, and by metes and bounds as to the remainder. They aver that the defendant, in an attempt to deceive them, falsely represented that there were 150 acres of bottom lands on the place, when in fact, as shown by a subsequent survey, there were only 57.20 acres of that kind of land. The total area of the whole tract, about which there is no dispute, is set down at 385.9 acres. They say that, relying upon those representations they were induced to pay for the property $10,500, together with some personalty priced at $1,500, as follows: $6,750 in cash, assumption of a prior mortgage of $2,565, and the execution of their promissory note and mortgage to secure the same for $2,685. They aver that the defendant will seek to negotiate the note and mortgage during the pendency of this suit, in which event they will suffer irreparable injury. They pray that the note and mortgage be canceled, that the defendant be enjoined from negotiating the same, and that they have judgment against him for the sum of $6,429.40, which they claim as damages in the transaction.

All allegations imputing fraud to the defendant are denied by the answer; likewise, the averments concerning damages. It is then said, in substance, that the plaintiff husband visited the premises during September, 1919, and examined them, and afterwards in November of the same year, he and his wife came and spent a week inspecting the tract, and consulted other persons in the neighborhood as to the value of the land, and finally, in April, 1920, they concluded their negotiations agreed to pay the purchase price of $10,500 by assuming the existing mortgage, paying a part of the purchase price, and giving their own note and mortgage for the remainder. Defendant avers that the property sold was well and reasonably worth the purchase price, and for further defense and counterclaim sets up the note and mortgage, and prays for a decree of foreclosure of the same. Some issues were made by the reply, but they are not important to consider here. The circuit court made findings of fact and conclusions of law in favor of the defendant, dismissed the complaint, and foreclosed the mortgage, and the plaintiffs have appealed.

It is true that this proceeding was commenced and tried as a suit in equity, in which part of the relief sought was the cancellation of the note and mortgage, but the principal relief demanded was the decree for damages. The defendant accepted the forum in which the litigation was inaugurated and has combatted the question of damages.

Under the authority of Scott v. Walton, 32 Or. 460, 52 P. 180, the opinion in which by Mr. Justice Robert S. Bean has become a classic in the judicial history of the state, we find the rule thus:

"A party who has been induced to enter into a contract by fraud, has, upon its discovery, an election of remedies. He may either affirm the contract, and sue for damages, or disaffirm it, and be reinstated in the position in which he was before it was consummated. These remedies, however, are not concurrent, but wholly inconsistent. The adoption of one is the exclusion of the other. If he desires to rescind, he must act promptly, and return or offer to return what he has received under the contract. He cannot retain the fruits of the contract awaiting future developments to determine whether it will be more profitable for him to affirm or disaffirm it. Any delay on his part, and especially his remaining in possession of the property received by him under the contract, and dealing with it as his own, will be evidence of his intention to abide by the contract * * *" (citing authorities).

The principal contention between the parties is about the matter of fraud relating to the amount of bottom land on the ranch. It is true and admitted by the defendant that he published in a newspaper an advertisement in the following terms:

"For Sale.--Dairy and stock farm; must sell on account of ill health. 385 acres, about 150 acres farm and pasture (creek bottom), balance bench and timber. 1 mile to station. A bargain like this is seldom offered. $10,000 and its yours. W. J. Butler, Canary, Ore."

Also in answer to an inquiry from the plaintiff Crouch, before the latter saw the tract, the defendant wrote a letter to Crouch praising the property,...