Fairbanks v. Johnson

• Decision Date: 09 March 1926
• Citation: 243 P. 1114,117 Or. 362
• Parties: FAIRBANKS ET AL. v. JOHNSON ET AL.
• Court: Oregon Supreme Court

243 P. 1114

117 Or. 362

FAIRBANKS ET AL. v. JOHNSON ET AL.

Supreme Court of Oregon

March 9, 1926

In Bank.

Appeal from Circuit Court, Tillamook County; George R. Bagley Judge.

Suit by Guy W. Fairbanks and another against Willard Johnson and another. From a decree dismissing the suit, plaintiffs appeal. Affirmed.

This is a suit to rescind a contract to buy a 20-acre dairy ranch in Tillamook county. Plaintiffs aver they were induced to enter into contract, September 20, 1923, to pay $7,500 for this place, by reason of the following alleged false and fraudulent representations:

"(1) That said property was worth the sum of $10,000, and that it was a bargain at the price of $7,500.

"(2) That the only reason defendants would take such a low figure for said property was on account of the health of the defendant Mary E. Johnson, who defendants claimed could not live longer in Tillamook county.

"(3) Defendants further represented that said real property described in said contract would keep and maintain and raise sufficient feed to carry 10 dairy cows.

"(4) That defendants had maintained 6 cows upon said property during the year just past, and the proceeds from the milk delivered at the cheese factory had averaged $150 per month.

"(5) Defendants also represented that the place consisting of 29 acres located just south of the property described in the contract hereinbefore described could not be purchased for less than $7,500."

Plaintiffs alleged:

"That each and all of said representations were false and were made by said defendants fraudulently and for the purpose of inducing plaintiffs to enter into said contract, and the plaintiffs relied upon said representations and statements and relying thereon, and not otherwise, were thereby induced to and did enter into said contract. That in truth and in fact said property described in said contract was not reasonably worth more than $3,000. That said property, at the time of making said contract would not produce sufficient feed to keep and maintain thereon more than 4 head of dairy cows. That in truth and in fact the average milk check per month for the year preceding the entering into the contract did not exceed $75 per month, and that during said year preceding the entering into said contract defendants had pastured the cows maintained upon said property described in said contract upon an adjoining farm a large portion of said year. That the place consisting of 29 acres, located just south of said property, could have been purchased by plaintiffs for the sum of $5,000. That plaintiffs did not learn of the falseness of the aforesaid representations so made by defendants to plaintiffs until a short time prior to the bringing of this suit, and particularly during the month of June, 1924, when the feed upon said premises for the dairy cows maintained by these plaintiffs was entirely gone, and then, and then only, these plaintiffs began to make inquiry concerning the truth of the representations made by defendants to plaintiffs, and then for the first time ascertained that said representations were false as hereinbefore alleged."

Plaintiffs paid $1,500 upon execution of the contract, assumed a mortgage of $1,000 in favor of the state land board, and agreed to pay the balance, $5,000, in yearly installments of not less than $500. Plaintiffs still retain possession, but allege in their complaint an offer to return to defendants all of the property received under the contract, subject to a lien of $1,500, which they ask the court to impress upon the same.

Defendants in their answer, so far as material, deny the charge of fraud, and allege affirmatively that plaintiffs, prior to the purchase of this property, made a thorough inspection and examination of the same, and relied upon their own judgment in the transaction under consideration.

The trial court, without making findings of fact, decreed that the suit be dismissed, and that defendants recover their costs and disbursements. Plaintiffs appeal.

Botts & Winslow, of Tillamook, for appellants.

T. H Goyne and C. R. Chapin, both of Tillamook, for respondents.

BELT J. (after stating the facts as above).

At the time of entering into this contract of purchase, plaintiffs were "newcomers" from Nebraska. While driving in their automobile along the state highway in Tillamook county they observed a "For Sale" sign in front of defendants' property. On the following Sunday evening they returned and inquired if the ranch was for sale. When told that it was on the market, the plaintiffs desired to look it over then, but were persuaded to stay all night and go over the ranch the next day. Mr. Fairbanks spent Monday, Tuesday, and Wednesday of that week (September, 1923) inspecting the ranch. He saw the cows milked, the amount of hay in the barn, dug holes to ascertain the character of the soil, was shown the boundaries of the ranch, and otherwise made a full and complete inspection. On Wednesday evening he decided to buy the property, having made an unsuccessful attempt to have the vendors "knock off $500." Thursday, plaintiffs drove their truck to McMinnville for their household goods, and on Friday all parties went to Tillamook City to have a lawyer draw up the contract. ...