Gould v. James

• Decision Date: 19 May 1931
• Docket Number: 1678
• Citation: 43 Wyo. 161,299 P. 275
• Parties: GOULD v. JAMES
• Court: Wyoming Supreme Court

299 P. 275

43 Wyo. 161

GOULD v. JAMES

No. 1678

Supreme Court of Wyoming

May 19, 1931

APPEAL from District Court, Big Horn County; PERCY W. METZ, Judge.

Action by James V. Gould against Lee B. James, wherein Bert E Snyder intervened. Judgment for plaintiff, and defendant appeals.

Modified and Affirmed.

The cause was submitted for appellant on the brief of Wm. C Snow, of Basin, Wyoming.

The court erred in deciding that plaintiff was induced to transfer land to defendant, upon fraudulent representations the evidence does not support plaintiff's allegations of fraud. 12 R. C. L. 244; Natl. Cash Register v. Townsend, (N. C.) 70 L. R. A. 349. There was no evidence showing that appellant or his representative made the misrepresentations complained of. Cancelling of executed contracts, is an exercise of extraordinary power by a court of equity, and should be employed with caution. The Atlantic Co. v. James, 94 U.S. 207; Union R. Co. v. Dull, 124 U.S. 173. He who seeks equity must do equity. Pomeroy's Eq. Jr. (3d) 1627. Snow v. Alley, (Mass.) 11 N.E. 764. The offer of plaintiff to return the deed and abstract did not re-invest title in defendant. Howe v. Martin, (Okla.) 102 P. 128. One seeking to rescind must offer to restore property obtained. O'Meara v. Haiden, (Calif.) 268 P. 354; Hawkins v. Stoffers, 40 Wyo. 240; Baylies v. Vanden Boom, et al., 40 Wyo. 411. Injured party must assert his rights with diligence. Pomeroy's Eq. Jr., 1646; 39 Cyc. 1433; 27 R. C. L. 656; Cooper v. Hillsboro, (Colo.) 152 P. 488. One continuing to receive benefits under the contract, of failing to disaffirm the contract on learning of fraud, waives right to rescind. Griggs v. Meek, 37 Wyo. 293; Tarkington v. Purvis, 25 N.E. 879; Dennis v. Jones, 6 A. S. R. 899. All persons affected by the relief sought, should be joined. 4 R. C. L. 517. The court erred in granting relief sought for the reason that plaintiff confirmed the contract, made no offer of restitution, only a partial rescission is ordered and there is a non-joinder of parties affected. The burden of proof was on plaintiff to show his interest in lands which he offered to quit claim to defendant. The court erred in sustaining the objection to introduction of evidence showing that plaintiff had no interest at the time suit was commenced.

The cause was submitted for the respondent on the brief of Charles L. Brome and Thomas M. Hyde, both of Basin, Wyoming.

The allegations of plaintiff's petition are fully sustained by the evidence. James and associates were shown to be engaged in a conspiracy to defraud people out of valuable lands, or obtain fabulous prices for worthless lands in Texas. Loan Star Immigration Company and Nelson Mortgage Company, were also engaged in the conspiracy. James held the title to the land plaintiff seeks to recover. He obtained the title by fraud, and was therefore a proper party defendant. A brief and cursory examination of property before execution of exchange agreement, did not prevent party thereto from relying on representations. Baylies v. Vanden Boom, 40 Wyo. 411. A reasonable effort was made by respondent to reach an adjustment before suit. The representations made to Gould that good citrus fruit growing lands in Texas were worth a stated price were true, but the lands traded to Gould were not good citrus growing lands. Gould's lands were shown to have a value of $ 25,000.00. The court placed the parties in the same position they were in before the exchange agreement was made. The point involved was clearly settled in Baylies v. Vanden Boom, supra. Gould was not guilty of laches. The evidence showed that his delay in bringing action was due to his efforts made to secure a satisfactory adjustment. The judgment below should be sustained.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This action was instituted by the plaintiff Gould against the defendant James, to cancel a deed of plaintiff's given to the defendant for 406.85 acres of land in Big Horn County, Wyoming, the land embraced therein having been traded for some land in Texas, the plaintiff claiming that he was induced to execute the deed by fraudulent representations made concerning the Texas land. After the execution of the deed, the land was sold, on contract, to Bert Snyder, who intervened in this action. The trial court cancelled the deed from plaintiff to defendant, did not disturb the rights of intervener, but directed him to make all payments under his contract to the plaintiff. From this judgment the defendant James has appealed.

1. It is contended that the evidence is not sufficient to warrant a decree setting the deed aside on the ground of fraud. This will necessitate a review of the testimony. We shall, however, only mention the salient facts.

The plaintiff, a farmer, owned the tract of land above mentioned, consisting of 406.85 acres in Big Horn County, Wyoming. In the spring of 1924, two men by the name of McDonald and Cooling, representing the defendant, or the Lone Star Immigration Company, approached the plaintiff to purchase some land in Cameron County, Texas. According to the plaintiff's testimony, they extolled the character of the Texas land in every way, showing paintings and pictures of different fruit and vegetable farms. They represented to him that it was citrus-fruit land, raising a better grade of fruit than in California, though the land was cheaper, and stated that it was of the value of $ 350.00 per acre. They offered to trade plaintiff's land in Big Horn County, Wyoming, for some of the land in Texas, and induced him, at his own expense, to join an excursion to Texas, starting from Kansas City, some time in May, 1924. Other parties from Big Horn County also went. At Kansas City, other excursionists to Cameron County, Texas, joined them; they were induced to all go together in the same car, and one Pingilly, representing the Immigration Company, lectured to them, extolling the lands sought to be sold. Arriving at Huntington, Texas, they were met by cars, drove into the country for some distance, towards Brownsville, and stopped, where lunch had been prepared for the crowd, at a place owned by a man who had a citrus-tree farm, and who took the occasion--at whose behest is not shown--to give a talk on the "possibilities of the country." They were taken to another citrus-tree farm, where they had the opportunity of learning that the owner thereof had just sold three acres of land for the sum of $ 3000.00. Other places, where citrus fruit was growing, were visited, and they got to Brownsville, Texas, at night, but instead of halting for rest they traveled to a community house of the Immigration Company, out about four miles, where they stayed for the night, and where they were regaled by music and a dance. The next morning plaintiff was taken out into the country, where the lands sought to be sold by the Immigration Company were located. He was shown what is called "heavy-land," as distinguished from "sandy" land, but was told that after a year or so, this land would be better for citrus fruit than the sandy land, and he was assured by McDonald, the man above mentioned, that the land could not be overflowed by the water from the Rio Grande river, which was nearby. Plaintiff thereupon selected Block 83, the west 20 acres of Block 84 and the west 20 acres in Block 89 of what is called the El Jardin subdivision in Cameron County, Texas, which was uncultivated, but contained a house just recently built. Plaintiff made a conveyance to the defendant James of his land in Big Horn County, Wyoming, subject to a mortgage of $ 8500, and received, in turn, conveyances for the tracts above described, made by one O. P. Hereford of Cameron County, Texas, subject to mortgages of $ 7291.00 in favor of the Nelson Loan Company, and executed notes of $ 2300 in favor of the James-Dickinson Farm Mortgage Company, secured by a "vendor's lien" on the lands conveyed to him. Plaintiff testified that in making the exchange he relied upon the representations made to him as above mentioned. He returned to Wyoming, but moved to Texas and onto the land which he had purchased in December, 1924. In the course of the following year, according to his testimony, after he had attempted to farm, learned something about the country, and attempted to plant some citrus trees, he discovered that the land sold to him was worthless or practically worthless for raising citrus fruit, and that it was worth about $ 50 per acre, instead of $ 350.00. In September, 1925, the land was flooded from the river to the depth of about three feet.

There is no testimony in the record to contradict the testimony of the plaintiff--in which he was to some extent corroborated by other witnesses--as to the representations made to him. It is true that defendant's testimony tends to show that the land was fit for raising citrus fruit, and that the land was worth the amount agreed to be paid by the plaintiff, but the credibility of the witnesses was for the trial court. Counsel for the defendant claims that the representations as to the value of the land and the fact that it was fit for raising citrus-fruit were matters of opinion, and not representations of fact. In 12 R. C. L. 278, however, it is said:

"It is also held that representations as to quality may be either expressions of opinion or statements of fact, and it is for the jury to say which they are. Misrepresentations of particular facts affecting the quality or condition of the thing sold are generally actionable. Fraud may be predicated of false representations that a certain privilege is annexed to land sold, or as to the character of improvements thereon, or that it is suitable for certain purposes."

In the case of Howe v....