Fryer v. Campbell, 1832

Citation48 Wyo. 122,43 P.2d 994
Decision Date16 April 1935
Docket Number1832
CourtUnited States State Supreme Court of Wyoming

ERROR to the District Court, Carbon County; V. J. TIDBALL, Judge.

Action by Arthur Campbell against George Fryer for rescission of contract of sale and for recovery of the amount paid on the purchase price. From a judgment for plaintiff, defendant brings error. The material facts are stated in the opinion.

Judgment reversed and case remanded for a new trial.

For the plaintiff in error, the cause was submitted on the brief of N. R. Greenfield and Harold M. Johnson.

The judgment below was that the sale should be vacated on the ground of false and fraudulent representations made by the seller to the buyer before the time of the sale. Error is prosecuted from that judgment. It is our contention that the evidence of fraud was insufficient to sustain the judgment. 25 C. J. 6 to 91; Bolden v. Stillwell, 1 L. R. A 258. The representations complained of are immaterial to the subject matter of the contract in question. Williston on Sales, p. 1046; Penn v. Crane, 134 Mass. 56; 12 R C. L. 297, 302; Slaughter's Adm'r. v Gerson, 13 Wall. 379; Blair v. Butalph, 72 Iowa 31; Dawe v. Morris, (Mass.) 21 N.E. 313; Helden v. Griffin, 136 Mass. 229; Washington Cent. Imp. Co v. Newlands, (Wash.) 39 P. 366; 51 A. L. R. 49, Note 7; Hall v. Johnson, 2 N.W. 55. As to the right of the buyer to rely upon statements of the seller, we find the rule stated in 12 R. C. L., Sec. 124, p. 372, 381. The leading case seems to be Slaughter's Adm'r. v. Gerson, supra. Pigot v. Graham, 48 Wash. 348; Cripe v. Wade, 123 Ore. 111; Schmauder v. Dell, (Ore.) 246 P. 349; Wash. Cent. Imp. v. Newlands, 11 Wash. 212, 39 P. 366; Wier v. Johns, (Colo.) 24 P. 262; Bondurant v. Crawford, 22 Iowa 40, Connant v. Terre Haute National State Bank, (Ind.) 22 N.E. 250; Annotation 61 A. L. R. 492; Ming v. Woolforlk, 116 U.S. 599; Nounnon v. Land Co., (Cal.) 22 P. 515; Corbin v. Preston, (Ore.) 218 P. 917; 51 A. L. R. 49, note 7. 24 R. C. L. 341. Sec. 631, et seq.; 55 C. J. 101; Bushnell v. Elkins, 34 Wyo. 495; First Nat. Bank v. Swan, (Wyo.) 3 Wyo. 356; Farmers Lumber Company v. Luikart, 256 P. 84. Plaintiff has not made out a case of rescission because of failure to show he has been injured. 26 C. J. 1167; 14 Am. & Eng. Ann. Cases, 262; Russell v. Company, (Texas) 251 S.W. 1034; 51 A. L. R. 1; Jakway v. Proudfit, 106 N.W. 1039. As to the weight of evidence we cite Southern Development Company v. Silva, 125 U.S. 247. Use of property after demand for rescission is a waiver. 24 R. S. L. 362; see note L. R. A. 1916 F. 479. The judgment below is not sustained by the pleadings and the defect is not cured by the judgment. Bancroft's Code Pleading, Vol. 3, p. 2383; Powers & Bro. v. Turner, (Mont.) 97 P. 950; 26 C. J. Fraud P. 1167; Adams v. Laughton, (Texas) 1 S.W.2d 429; Calloway v. Chrestman, 268 S.W. 908; Sieveking v. Litzler, 31 Indiana 13; Hopkins v. Grocery Company, (Texas) 66 S.W. 63; Coffall v. Telephone Company, 136 S.W. 105; Sawyer v. Prickett, 86 U.S. 146; Boles v. Merril, 53 N.E. 894; Johnson v. Seymor, 44 N.W. 344; 37 L. R. A. 596, note. For the foregoing reasons, the judgment below should be reversed, with instructions to render judgment for plaintiff in error.

The cause was submitted for defendant in error upon the brief of Armstrong and Armstrong, of Rawlins.

The second assignment of error is clearly insufficient. Hall Oil Company v. Barquin, 28 Wyo. 151; Posvar v. Pearce, 37 Wyo. 509; Stein v. Schuneman, 39 Wyo. 476; Peterson v. Le Faivre, 44 Wyo. 378. The rule that a general assignment of errors is sufficient applies only to such matters as are apparent as errors on the face of the record and all others should be specially assigned. Wolcott v. Bachman, 3 Wyo. 335; 3 C. J. 1390; Rooker v. Celadon Company, (Ind.) 100 N.E. 469. The motion for a new trial alleges nineteen errors as grounds for a new trial; the first one of these enumerates twelve alleged errors. A motion for a new trial which states no statutory ground therefor is insufficient. Stanton v. Chicago, B. & Q. R. Co., 25 Wyo. 138; Dubs v. Ry Co., (N. D.) 181 N.W. 606. As to what constitutes error in law, we cite McKenzie v. Water Company, (N. D.) 71 N.W. 608. The conclusions of law stated are insufficient grounds for a new trial. Holmes v. Phoenix Mut. Life Ins. Co., 49 Ind. 356; In Re Roberts' Estate, (S. D.) 170 N.W. 580; In Re Keating's Estate, (Cal.) 122 P. 1079; Rooker v. Co., (Ind.) 100 N.E. 469; Railroad School Tp. v. Christensen, (Ind.) 169 N.E. 533. The foregoing authorities relate primarily to numerous alleged errors of law occurring in the trial as to the several assignments that the findings are not sustained by the evidence. We cite Weaver v. Apple, (Ind.) 46 N.E. 642; Froman v. Patterson, (Mont.) 24 P. 692; Swift v. Petroleum Co., (Cal.) 74 P. 700; Black v. Harrison Company, (Cal.) 99 P. 494; Newkirk v. Watson, (Ind.) 161 N.E. 704; Migatz v. Stieglitz, (Ind.) 77 N.E. 400; Ellis, McKinnon & Brown v. Hoppe, (Ga.) 118 S.E. 583. Assignments numbered 9 to 12 merely amount to a statement that the judgment is erroneous. Beebe v. Ry Co., (Wisc.) 118 N.W. 808. The several assignments as to the insufficiency of pleadings were not grounds for a new trial. Komposh v. Powers, (Mont.) 244 P. 298; Mann v. Barkley, (Ind.) 51 N.E. 946; Bone v. Hayes, (Cal.) 99 P. 172; Paving Company v. City of Topeka, (Kan.) 50 P. 904; Perkins v. McDowell, 3 Wyo. 328; Dobson v. Owens, 5 Wyo. 85; Seibel v. Bath, 5 Wyo. 409. As to assignments numbered 6, 8 and 13, as to the insufficiency of the evidence, we cite 46 C. J. 327; Wise v. Larkin, (Ind.) 84 N.E. 25; Smith v. Hill, (Ind.) 165 N.E. 911; Swift v. Company, (Cal.) 74 P. 700; Gates v. Ry. Co., (Ind.) 56 N.E. 722; Caldwell v. Wells, (Idaho) 101 P. 812; Schiller v. Company, 15 Wyo. 304; Gramm v. Fisher, 3 Wyo. 595; Wolbol v. Steinhoff, 25 Wyo. 227; Iowa State Savings Bank v. Henry, 22 Wyo. 189; N. M. Coal Company v. Baker, (N. Mex.) 157 P. 167; O'Dell v. Hiney, (N. D.) 190 N.W. 774. Supreme Court Rule No. 1 requires distinct assignments of error, and Rule No. 13 provides that each matter presented by a motion for a new trial shall be sufficiently questioned by an assignment of error. Hogan v. Peterson, 8 Wyo. 549; Grimm v. Town of Washburn, (Wisc.) 75 N.W. 984; Goldberg v. Loan & Title Co., (S. D.) 123 N.W. 266. Errors assigned, but not argued, are waived. Shomo v. Burgess, 44 Wyo. 197; Automobile Company v. Lloyd, 40 Wyo. 44; Henderson v. Land, 42 Wyo. 369; In Re Goshen Dist., 42 Wyo. 229; Wyoming Inv. Company v. Wax, 45 Wyo. 321; Bradley v. Butchart, (Cal.) 20 P.2d 693. Findings of a trial court on conflicting evidence, are conclusive. First Nat. Bank v. Ennis, 44 Wyo. 497; Seaman v. Canal Ass'n., 29 Wyo. 391. Uncontradicted testimony must be accepted as true on appeal. Carter Oil Company v. Oil Company, 37 Wyo. 448. Fraud may be proven by circumstantial evidence. 27 C. J. 52; 26 C. J. 1109; Ulch v. Wessel, (Iowa) 166 N.W. 94. Fraudulent intent may be established by inference from the facts proven. 27 C. J. 70. Fraudulent intent may be inferred from fact that false statements were made with knowledge of their falsity. Hayes v. Neal, (Minn.) 45 N.W. 612. As to the materiality of representations we cite 55 C. J. 123; Roebuck v. Wick, (Minn.) 107 N.W. 1054; Thompson v. Schroeder, (Minn.) 154 N.W. 792. The buyer has a right to rely on statements of the seller. Hetland v. Bilstad, (Iowa) 118 N.W. 422; Barron Estate Company v. Woodruff Company, (Cal.) 126 P. 351; Orchard Company v. Markham, (Mont.) 171 P. 274; 12 R. C. L. 373, 382; Burnett v. Taylor, (Wyo.) 252 P. 790; Farley v. Wiess, (Nebr.) 107 N.W. 561; 26 C. J. 1147. The injury caused by misrepresentations need not be a monetary damage. Greiling v. McLean's Estate, (Wis.) 107 N.W. 339; McGowan v. Land Company, (Ore.) 155 P. 705; MacLaren v. Cochran, (Minn.) 46 N.W. 408; Miranovitz v. Gee, (Wis.) 157 N.W. 790. As to the weight of the evidence, the authorities cited by plaintiff in error clearly do not support his position. Under modern practice codes, a sworn answer is not evidence. 21 C. J. 567, 573; 23 C. J. 19, 20, 23. It is contended that the use of property after demand for rescission is a waiver. The rule does not apply where the wrongdoer refuses to receive the property tendered back. Clark v. Wells, (Minn.) 149 N.W. 547. Moreover the question cannot be submitted to the jury unless the matter is pleaded. 27 C. J. 40. The sufficiency of the pleadings was not assigned as error and cannot be considered. Butterworth v. Beach, (Wyo.) 215 P. 1085. State v. Luckuck, 44 Wyo. 218; Jones v. Parker, 39 Wyo. 423; 55 C. J. 294; Ludowise v. Amidon, (Minn.) 144 N.W. 965. This is a case where the judgment of the court below should be affirmed, and penalties assessed on the plaintiff in error under Sec. 89-4804, R. S. 1931. Ry. Co. v. Prater, 229 U.S. 177; Collins v. Trading Company, (Ga.) 32 S.E. 667; Banks v. Dow, 5 La. 269; Roe v. Roe, (Ga.) 66 S.E. 482; Myles v. Russell, (Cal.) 213 P. 491; Koelling v. Wachsning, 174 Ill.App. 321; Johnson v. Ass'n., (Iowa) 152 N.W. 561; Hitshew v. Dern, 37 Wyo. 329; Light v. Reed, (Ill.) 85 N.E. 282; Syndicate Imp. Co. v. Bradley, 6 Wyo. 171; 15 C. J. 284.

N. R. Greenfield and Harold M. Johnson in reply.

As to the sufficiency of the second assignment of error, we contend that the case of Hall Oil Company v. Barquin, 28 Wyo. 151, does not sustain defendant in error, nor does Wolbol v. Steinhoff, 25 Wyo. 227. The assignment is sufficient under the rule announced in Murphy v Livestock Company, 26 Wyo. 455. Sec. 89-2101, R. S.; Buckeye Pipe Line Co. v. Fee, 57 N.E. 446; 14 Ency. P. & P. 782; 20 Ency. of Procedure 513, 599. The code shall be liberally construed. Schiller v. Company, (Wyo.) 88 P. 648; Hilliard v. Douglas Oil Fields, (Wyo....

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