Fontaine v. Lyng
| Decision Date | 19 December 1921 |
| Docket Number | 4532. |
| Parties | FONTAINE v. LYNG ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Chouteau County; John W. Tattan, Judge.
Action by C. H. Fontaine against Jennie Lyng, as executrix of the last will and testament and estate of Halvor O. Lyng deceased, and others. Decree for plaintiff, and defendants appeal. Reversed and remanded.
I. W Church and Fletcher Maddox, both of Great Falls, for appellants.
W. S Towner, of Ft. Benton, and Norris, Hurd & Rhoades, of Great Falls, for respondent.
Upon the 2d day of November, 1916, plaintiff entered into a contract with Halvor O. Lyng and Jennie Lyng, his wife, for the purchase of certain real estate. About a year afterward, plaintiff commenced this action against Jennie Lyng, as executrix of the last will and testament of Halvor O. Lyng, deceased; Hilman Lyng, Clara Lyng, and Jennie M. Kitt, devisees under the will, claiming a rescission of the contract on the ground of misrepresentations. Defendants with their answers filed a counterclaim claiming a cancellation of the contract because of the failure of plaintiff to make payments in accordance with the terms thereof. The case was tried before the court sitting with a jury. Findings of fact were made by the jury substantially sustaining plaintiff's contentions, which were adopted by the court with additional findings. The court made conclusions of law and entered decree in favor of plaintiff in accordance therewith. Defendants have appealed from the decree.
In the latter part of October, 1916, plaintiff and his wife came from the state of Washington, looking for an investment in land. Hilman Lyng, son of Halvor O. Lyng, now deceased, as his father's agent undertook to sell to plaintiff his father's ranch consisting of approximately 2,360 acres of land, and showed him the premises. In addition to certain other alleged misrepresentations which are not necessary to be considered, Hilman Lyng pointed out the barn and a spring of water in close proximity to it, inclosed with the Lyng land within a certain fence, and represented that the fence was the south boundary line of the ranch; however, the barn and the spring were not within the boundary line of the Lyng ranch but south of it, the barn being from 30 to 40 feet south of the south line of the ranch and the fence about 100 feet south of the line. This was a matter of considerable importance to plaintiff in his handling of live stock as he contemplated. Plaintiff took possession November 17, 1916, having paid $10,000 upon the purchase price, $2,000 of which was paid on the execution of the contract and $8,000 on the date of taking possession. In December following, a verbal notice was given to plaintiff by one Sample claiming that the barn was upon his premises, and directing plaintiff to remove it therefrom, which was the first intimation that plaintiff had that the barn and spring were not within the boundaries of the ranch. Plaintiff immediately took up the matter with Hilman Lyng, who assured plaintiff that it would be all right; that there was an agreement between his father whereby his father was to purchase the land inclosed with the fence belonging to Sample or would move the barn onto the Lyng land. Plaintiff said nothing, neither expressing satisfaction with nor dissent from the proposition and did nothing further about it at that time. About April, 1917, Sample served a written notice on plaintiff again demanding the removal of the barn. The matter was again taken up by plaintiff with Hilman Lyng, who gave him the same assurances as before. So far as appears from the record, nothing further was done in adjusting the matter with Sample. Plaintiff cropped the place for 1917, and in September, 1917, he went to the executrix and asked for an extension of time upon the payment due November 2 of that year, which extension was not granted. On the 20th of October, 1917, plaintiff presented to the executrix his claim for rescission and damages, which claim was disallowed. On the 1st of November, 1917, this action was commenced. On December 18, 1917, Hilman Lyng served upon plaintiff written notice canceling the contract because of the failure of plaintiff to make the payment due November 2d preceding, and demanding possession of the ranch. Plaintiff, however, remained in possession of the ranch until about the middle of April, 1918.
The first question to be determined upon this appeal is whether or not plaintiff is entitled to a decree rescinding the contract. The evidence of the plaintiff's witnesses was clear and unequivocal that Hilman Lyng misrepresented the south boundary of the ranch so as to include the barn and spring, and the findings of the jury and of the court were in accordance therewith. This feature of the case being determined by the jury and the court in favor of plaintiff upon sufficient evidence, and the representation being material, it must be held that such misrepresentation was sufficient ground for rescission. Post v. Liberty, 45 Mont. 1, 121 P. 475.
The court expressly found that plaintiff "trusted to Hilman Lyng and associate owners of the Lyng ranch to take such action as was necessary to include said barn and water within the boundaries of the said Halvor O. Lyng home ranch," and the finding was unquestionably supported by the evidence. Plaintiff had the right to rely upon the assurances of Hilman Lyng and, in doing so, was justified in giving to Hilman Lyng a reasonable time within which to fulfill his assurances. While resting upon these promises, plaintiff had the right to continue with his contract, and therefore, whatever he did in the way of cropping the land, of seeking an extension of time for payment of the installment due November 2, 1917, would not be any waiver of his right to rescind on the ground of the misrepresentations as to the barn and water if such assurances should not be fulfilled. On the contrary, plaintiff was not under obligation to wait indefinitely for this matter to be adjusted, and when, after nearly a year's time, nothing had been done to make good the defect in the title, plaintiff had the right to declare the rescission of the contract.
Plaintiff however, after filing his claim with the executrix and after commencement of suit, failed to stand upon his right of rescission, but waived such right by...
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