Gordon v. Hutchins

• Decision Date: 14 January 1919
• Citation: 105 A. 356,118 Me. 6
• Parties: GORDON v. HUTCHINS et al.
• Court: Maine Supreme Court

105 A. 356

118 Me. 6

GORDON

v. HUTCHINS et al.

Supreme Judicial Court of Maine.

Jan. 14, 1919.

Motion and Exceptions from Superior Court, Kennebec County, at Law.

Action of assumpsit by Olga M. Gordon against W. D. Hutching and W. B. Kendall, resulting in verdict for plaintiff. On defendants' motion for new trial and their exceptions. Exceptions sustained, motion sustained, and verdict set aside.

Argued before CORNISH, C. J., and HAN SON, DUNN, MORRILL, WILSON, and DEASY, JJ.

George W. Heselton, of Gardiner, for plaintiff.

Williamson, Burleigh & McLean, of Augusta, for defendants.

WILSON, J. In the spring of 1912, the plaintiff negotiated for the purchase of a farm of the defendants, and on the 1st day of June, 1912, received from the defendants a bond bearing date of May 8, 1912, to deliver to the plaintiff a deed of the premises upon the payment of the purchase price in accordance with the conditions of the bond. The plaintiff entered into the occupancy of the premises on or about the 15th day of May, 1912, and continued to occupy and carry on the farm until at least December 3, 1914, when her counsel notified the defendants by letter that she rescinded her agreement to purchase on the ground of fraud.

Following a surrendering up or abandonment of the premises, the plaintiff brought an action of deceit, alleging fraudulent representations by the defendants of substantially the same tenor as those set forth in the case at bar. To this action of deceit the defendants pleaded the general issue, and a brief statement of special matters of defense, among which were:

(1) That the defendants had rescinded the contract, and surrendered up the premises, which had been sold by the defendants.

(2) That the alleged fraud had been waived by the plaintiff by reason of her continuing under the contract and requesting and receiving, an extension of time for payment, after discovery of the alleged fraud, that the plaintiff had committed waste on the premises, and had finally abandoned them.

At the October term, 1916, with the consent of the plaintiff's counsel an entry of nonsuit was made, whereupon the plaintiff then brought the present action of assumpsit, under which she now claims that the contract of purchase was rescinded by reason of substantially the same fraudulent representations as were set forth in her prior action of deceit.

To this action the defendants have pleaded the general issue with a brief statement of special matters of defense, among which were the following: (1) That the fraud, if any, had been waived after discovery; (2) that the contract was never legally rescinded ; (3) that the plaintiff by bringing her previous action of deceit had elected her remedy and was estopped from bringing the present action. The Jury at nisi prius found that the plaintiff was entitled to recover of the defendants the sum of $1,331.24. The case comes before this court on motion of the defendants for a new trial on the usual grounds and on exceptions by the defendants.

The plaintiff in her declaration has made at least nine distinct allegations of fraudulent representations as inducements for her entering into the agreement to purchase. The defendants, however, point out that her husband acting as her agent visited the farm for the purpose of inspecting it prior to the purchasing; that she occupied the premises for two seasons without a word in a considerable volume of correspondence as to any claim of fraud, although the alleged shortcomings were frequently urged as excuses for failure to meet her payments on the purchase price and interest; and that it was not till the spring of 1914, and the defendants insisted on payments being made, that the first claim of fraud appears in the correspondence.

It is urged by counsel for the plaintiff that she was kept quiet by oral promises of adjustment. This is denied by the defendants, and there is at least no direct evidence of it in the case; and the letters of the plaintiff's husband and agent contain no suggestion of an intent to avoid her contract until the spring of 1914, though it may appear that the fruits of their labor fell somewhat short of their anticipations.

The scope of an opinion does not permit an analysis of all the evidence. Without deciding whether the evidence that the fraudulent representations were made as alleged was "clear and convincing" as is required under the decisions of this court (Strout v. Lewis, 104 Me. 65, 67, 71 Atl. 137; Bixler v. Wright, 116 Me. 133, 135, 100 Atl. 467, L. R. A. 1917F, 633; Jones v. Shiro, 116 Me. 512, 102 Atl. 76), we feel that after two years of occupation and cultivation of this farm, with the opportunity for acquiring knowledge of the falsity of the representations, if any such were made, as to the amount of hay and apples produced on the premises the year prior to the purchase, with her expressed intent from time to time of carrying out the contract, her payments on account of the purchase price and interest, with requests for extension of time of making payments, the defendants' waivers of time of payments, there was evidence of a waiver by the plaintiff of any misrepresentations as to the property, to which the jury, under the rulings of the court, did not give proper weight.

Again, granting the claim of the plaintiff that, notwithstanding the place cut only 8 tons English hay in 1912, and 7 tons in 1913, and the many other respects in which she now claims it fell short of the representations, her suspicions as to its failure to produce 25 tons of English hay and $50 to $60 worth of apples in 1911 were not aroused till the middle of the haying season of 1914, when inquiries were made of the neighbors, the jury should have been allowed to pass upon the question of whether the evidence disclosed sufficient grounds for delay in rescinding the contract till December, 1914. Estey v. Whitney, 112 Me. 131, 90 Atl. 1093; Clark v. Stetson, 113 Me. 276, 93 Atl. 741; Bither v. Packard, 115 Me. 306, 315, 98 Atl. 929.

The jury, however, were precluded from considering this phase of the case by the ruling of the court that, owing to the defendants setting up as a defense under their brief statement in the former suit that the contract had been rescinded, they were now estopped in this action from denying it, and that it must be treated as a rescinded contract. By this ruling the jury were in effect also precluded from considering whether or not there had been a waiver by the plaintiff of any misrepresentations which they found to have been made; the inference being that, if there was a rescission, there could have been no waiver of the fraud. We think there was error in this ruling. If the question of waiver and rescission had been submitted to the jury under proper instructions, they might have reached a different conclusion.

The ruling of the court upon the effect of the defendants' plea of rescission in the former case appears to have been based upon the assumption that the issue of whether or not there was a legal rescission of the contract was then decided, that the entry of nonsuit was in the nature of a judgment based upon that finding, and that the question of rescission between these parties is now res judicata. Neither the evidence before this court, nor the legal effect of the entry of nonsuit, seems to warrant that assumption. From the printed case it appears that it was a voluntary nonsuit consented to by the plaintiff's counsel, upon the suggestion of the court that she had misconceived her remedy, no doubt to save her own right to bring a new action and avoid an estoppel by election of her remedy. We do not mean to imply, however, that the result would have been different if the nonsuit had been ordered by the court against the objection of the plaintiff.

Estoppels are of three kinds: By record, by deed, and in pais. The record of a court creates two estoppels: One, as a memorial, or record, of the proceedings which all the world is estopped from denying; and, two, as a record of the fact enrolled or issue decided or in other words, of a judgment of the court, which only estops the parties and their privies to the action, except in the case of judgments in rem. Bigelow on Estoppel (6th Ed.) pt. 1, c. 1. That the former action between these parties was disposed of by a nonsuit all the world is estopped to deny. Bigelow on Estoppel (6th Ed.)...