Frank v. Davis

• Decision Date: 24 December 1921
• Citation: 203 P. 287,34 Idaho 678
• Parties: SAM FRANK, Respondent, v. T. M. DAVIS, Appellant
• Court: Idaho Supreme Court

203 P. 287

34 Idaho 678

SAM FRANK, Respondent, v. T. M. DAVIS, Appellant

Supreme Court of Idaho

December 24, 1921

PLEADING AND PRACTICE-LIMITATION OF ACTIONS-FRAUD AND DECEIT.

1. An allegation that "this cross-plaintiff did not discover the falsity of the representations so made by the cross-defendant until some time in April, 1915,.... is not an allegation of the discovery of facts constituting fraud within the meaning of the provisions of C. S., sec. 6611.

2. The statute of limitations does not apply to pure defenses, but is applicable only where affirmative relief is sought.

3. Allegations of fraud in a pleading to be sufficient must set forth the facts constituting the fraud with reasonable certainty.

4. A defense to a promissory note of want of consideration because of fraudulent representations of the payee in regard to the transactions in which the note was given is insufficient unless it appears that the maker of the note was damaged by reason of the fraud.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Wallace N. Scales, Judge.

Action on promissory note. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent.

F. H Rehberg and Fred E. Butler, for Appellant.

The statute which provides that an action for relief against fraud must be commenced within a certain period does not apply where the fraud is set up merely by way of defense and not as a ground for affirmative relief. (25 Cyc. 1194; Wood on Limitations, art. 284, subd. 2; Evans v. Duke, 6 Cal. Unrep. 973, 69 P. 688; Thomas v. Rauer, 62 Kan 568, 64 P. 80; Brown v. Cloud County Bank, 2 Kan App. 352, 42 P. 593; Robinson v. Glass, 94 Ind. 211.)

Where a complaint states any cause of action that will put defendant on his defense it is not subject to demurrer. (Village of Sandpoint v. Doyle, 11 Idaho 642, 83 P. 598, 4 L. R. A., N. S., 810.)

Miles S. Johnson, for Respondent.

In pleading mistake, fraud or concealment to show that the cause of action did not accrue until the discovery thereof, it is necessary to allege facts and not mere conclusions of law. (25 Cyc. 1418; Wood v. Carpenter, 101 U.S. 135, 25 L.Ed. 807.)

The alleged defense is barred by the statute of limitations. (Williams v. Shrope, 30 Idaho 746, 168 P. 162.)

RICE, C. J. Budge, Dunn and Lee, JJ., concur, McCarthy, J., concurs in the conclusion.

OPINION

RICE, C. J.

This is an action on a promissory note. Appellant answered admitting the execution of the note but denying that any sum was due thereon. Appellant also alleged that he had received no consideration for the note in that it was obtained by respondent through his fraudulent representations. The allegations with reference to the fraudulent representations of respondent are in substance the following: That on or about June 29, 1914, respondent was the owner of a certain tract of land, describing it, and represented to appellant that the land contained approximately sixty acres under cultivation and requested appellant to go and make examination of said land, giving appellant specific instructions as to the location of said land from known and visible monuments; that appellant made a personal examination of the land so described by respondent and found that the tract of land referred to by him contained approximately sixty acres of land under cultivation; that thereupon appellant and respondent concluded the transaction and appellant agreed to pay to respondent the sum of $ 4,000; that as a part of the purchase price of said tract of land appellant delivered to respondent the promissory note referred to in the complaint. Appellant further alleged that the representations made to him by respondent concerning the tract to be sold were false, fraudulent and untrue and were known to respondent at the time to be false and untrue, and that appellant relied upon such statements and believed that respondent was conveying to him the tract of land so examined; that the tract of land actually conveyed to appellant was inferior in quality, containing a small growth of timber and had no tillable land under cultivation at all and worth less by an amount exceeding $ 800 than the tract of land contracted for by him.

At the same time appellant filed a cross-complaint, asking for the cancelation of the note and the recovery of the amount previously paid to respondent. Respondent demurred to the answer and to the cross-complaint, upon the grounds, first that the matter set forth in the defense and in the cross-complaint was not sufficient to constitute a defense or cause of action; and second, that both the defense and the cross-complaint were barred by the statute of limitations. The cross-complaint contains the following allegation: "That this cross-plaintiff did not discover the falsity of the representations so made by the cross-defendant until some time in April, 1915, . . ." Manifestly, this is not an allegation of the discovery of the facts constituting the fraud so as to remove the bar of the statute, and the demurrer to the cross-complaint was...