Freeman v. Fehr
| Decision Date | 20 April 1916 |
| Docket Number | 19,847 - (16) |
| Citation | 157 N.W. 587,132 Minn. 384 |
| Parties | J. M. FREEMAN v. CASPER FEHR AND ANOTHER |
| Court | Minnesota Supreme Court |
Action in the district court for Renville county. Plaintiff's motion for an order restraining defendants from serving upon plaintiff pendente lite a notice of cancelation of the contract of sale mentioned in the complaint under section 8081, G.S. 1913, was granted, Daly, J. From the order granting the restraining order, defendants appealed. Affirmed.
Injunction -- to restrain serving statutory notice of cancelation of land contract
In an action by the vendee in a contract for the sale of land to recover payments made thereunder on the theory that the vendee has rescinded the contract for fraud of the vendor the trial court granted an injunctional order restraining the vendee during the pendency of the action from attempting to cancel the contract by giving notice under the statute. It is held:
(1) The order was not forbidden by the statute, though its only value to plaintiff was in case he failed to prevail in the action. It is sufficient if the injunction protected a right that plaintiff had in case he failed in the action.
(2) Plaintiff, by electing to rescind and bringing this action did not necessarily abandon his right to affirm the contract and recover damages for the fraud. If the present action should be dismissed by plaintiff, or if he should be defeated herein on the ground of laches or that he had affirmed the contract, he could then perform and sue for the fraud.
(3) There was a sufficient showing of probable irreparable injury to plaintiff if defendant was permitted to cancel the contract during the action to warrant granting the relief asked.
(4) The order was not beyond the power of the court, and making it was not an abuse of its discretion.
J. M. Freeman and Morgan J. Flaherty, for respondents.
Appeal by defendants from an order of the district court of Renville county restraining them pending the action from serving on plaintiff a notice of the cancelation under G.S. 1913, § 8081, of the contract of sale hereafter described, or in any other manner canceling the same.
The order appealed from was based upon the complaint and answer and upon affidavits. The complaint alleges that plaintiff and defendants on July 30, 1914, entered into a contract for the sale by the latter to the former of a farm in Renville county for the price of $17,664.40; $8,300 of this was in mortgages against the property assumed by plaintiff; $8,000 was to be paid in cash March 10, 1915, and the balance either in cash on said date or by plaintiff's note due in one year. It is alleged that plaintiff was induced to enter into the contract by false representations as to the absence of quack grass thereon, and the materiality of these representations, and plaintiff's reliance thereon, are fully set forth. On January 12, 1915, the time for performance by plaintiff was extended to December 1, 1915. Plaintiff first learned of the alleged falsity of the representations about December 1, 1915, and on or about December 27 notified defendant Caspar Fehr that he would rescind the contract. The failure of plaintiff to perform on December 1 and the failure to sooner notify defendants of his decision to rescind, are excused by an allegation of the illness of defendant Caspar Fehr. The complaint then alleges payments by plaintiff on account of the contract, a payment of interest on one of the mortgages, and the expenditure of some $750 for improvements on the farm. It then alleges the tender by plaintiff to defendants of a duly-executed warranty deed of the lands, an offer to account to defendants for the rents and profits while plaintiff was in possession, a demand of defendant for "the rescission of said agreement," and the return of the payments made by plaintiff on the purchase price, and the refusal of defendants to "consent thereto." After alleging plaintiff's readiness, ability and willingness to convey the premises to defendants, and to account for the rents and profits, the complaint demands judgment for the various sums paid by plaintiff with interest, less the amount of the rents and profits, and that the contract be delivered up and cancelled.
The answer admitted the execution of the contract, the payments made by plaintiff and that there were some patches of quack grass on the farm. It alleged facts which, if true, show full knowledge on the part of plaintiff of the character of the farm, including the presence of quack grass, before the contract was executed and also tending to show laches and a waiver of the right to rescind. The reply was a general denial. The affidavit of plaintiff, upon which was based the order to show cause why a temporary injunction should not issue, alleged that defendants were about to serve upon plaintiff a notice of the cancelation of the contract under the statute, and the consequent...
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