Hayton v. Clemans
| Decision Date | 17 June 1916 |
| Citation | 165 P. 994,30 Idaho 25 |
| Parties | CHARLES G. HAYTON and MARY L. HAYTON, His Wife, Respondents, v. W. R. CLEMANS and MAUD CLEMANS, His Wife, Appellants |
| Court | Idaho Supreme Court |
RESCISSION OF CONTRACT-CANCELLATION DEED-PROMISSORY NOTE-FRAUDULENT REPRESENTATIONS-COMPLAINT SUFFICIENT-CONFLICT IN EVIDENCE-JUDGMENT SUSTAINED.
1. Where an action is brought to rescind a contract, to cancel and hold for naught a deed made and delivered, and to secure the recovery of a promissory note given at the time of, and in connection with, the making of the contract and deed, and for a reasonable rental of the premises possessed by defendant subsequent to the making and delivery of the deed and the complaint alleges that the contract was entered into and the deed and promissory note made and delivered as the result of false and fraudulent representations of defendant known by him to be false and fraudulent when made, and to have been made with the intent to deceive the plaintiff and to have him act upon them, and that the plaintiff relied and acted upon such false and fraudulent representations and thereby suffered injury: Held, that the complaint states facts sufficient to constitute a cause of action.
2. Where there is a substantial conflict in the evidence neither the findings nor judgment of the trial court will be disturbed on appeal.
[As to right of purchaser to rescind contract of sale for breach by vendor in tendering less land than quantity contracted for see note, in Ann.Cas. 1916D, 1154]
APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Edgar C. Steele, Judge.
Action for the rescission of a contract, the cancelation of a deed and promissory note, and for the recovery of rental. Judgment for plaintiff. Affirmed.
Judgment sustained. Costs awarded to respondents.
G. G. Pickett and A. L. Morgan, for Appellants.
The complaint must allege that prior to the commencement of the action the plaintiff had elected to rescind; that acting upon such election, he had restored or offered to restore whatever he had received in the transaction, and that he still stands ready, willing and able to make such restoraton, providing the thing to be restored is of any value. (Godding v. Decker, 3 Colo. App. 198, 32 P. 832; Breshears v. Callender, 23 Idaho 348, 131 P. 15; Herman v. Haffenegger, 54 Cal. 161.)
"If a party has no cause of action at the time of its commencement he cannot maintain it by filing a supplemental complaint founded upon matters which have subsequently occurred." (Hill v. Den, 121 Cal. 42, 53 P. 642.)
This action cannot be maintained upon an amended complaint setting out a condition of affairs which did not exist at the time of the commencement of the action. (Wittenbrock v. Bellmer, 57 Cal. 12; Kelley v. Owens, 120 Cal. 502, 47 P. 369, 52 P. 797; Gifford v. Carvill, 29 Cal. 589.)
Courts of other states also hold that a return or offer to return is a condition precedent to the commencement of an action upon the rescission of a contract. (State v. Dennis, 39 Kan. 509, 18 P. 723; Bowden v. Achor, 95 Ga. 243, 22 S.E. 254; Dotterer v. Freeman, 88 Ga. 479, 14 S.E. 863; Bryant v. Stothart, 46 La. Ann. 485, 15 So. 76; Harkness v. Cleaves, 113 Iowa 140, 84 N.W. 1033; Reeves v. Corning, 51 F. 774.)
Frank L. Moore and J. H. Forney, for Respondents.
The complaint is sufficient. (Breshears v. Callender, 23 Idaho 348, 131 P. 15.)
Restitution of consideration is excused under the allegations of the amended complaint and the facts disclosed by the evidence. (Pomeroy's Equitable Remedies, sec. 688, notes 67, 70, 73, 74.)
Findings of fact by the court and judgment thereon, based on evidence substantially conflicting, will not be disturbed on appeal. (Sabin v. Burke, 4 Idaho 28, 37 P. 352; Spaulding v. Coeur d'Alene Ry. etc. Co., 5 Idaho 528, 51 P. 408; Pine v. Callahan, 8 Idaho 684, 71 P. 473; Curtis v. Kirkpatrick, 9 Idaho 629, 75 P. 760; Heckman v. Espey, 12 Idaho 755, 88 P. 80; Miller v. Donovan, 13 Idaho 735, 13 Ann. Cas. 259, 92 P. 991; Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 133 Am. St. 125, 101 P. 1059; Salisbury v. Spofford, 22 Idaho 393, 126 P. 400; Miller v. Blunck, 24 Idaho 234, 133 P. 383; Hufton v. Hufton, 25 Idaho 96, 136 P. 605; Cameron Lumber Co. v. Stack-Gibbs L. Co., 26 Idaho 626, 144 P. 1114; Bower v. Moorman, 27 Idaho 162, 147 P. 496; Pomeroy v. Gordan, 25 Idaho 279, 137 P. 888; Commercial Trust Co. v. Idaho Brick Co., 25 Idaho 755, 139 P. 1004.)
BUDGE, J. Sullivan, C. J., concurs. Justice Morgan did not sit at the hearing of this case and took no part in the decision.
This suit was brought by respondents in the district court of the second judicial district, in and for Latah county, against appellants, for the cancelation of a certain deed made by respondents by which certain lands and premises belonging to respondents situate in Latah county, Idaho, were conveyed to appellant W. R. Clemans, and for the cancelation of a certain promissory note for the sum of $ 1,000 made by respondents and payable to the order of appellant W. R. Clemans.
From the record it appears that respondents were the owners of certain lands and premises situate in Latah county, and that appellants were the owners of an undivided fifty-eight per cent of an interest in a large tract of land lying in Walla Walla county, Washington. This interest was by virtue of a contract for a sale of said land by one Preston to one Kenworthy. On March 27, 1913, appellant W. R. Clemans proposed to sell to respondent Charles G. Hayton a twenty-five per cent, or one-fourth interest, in and to the lands and premises lying in Walla Walla county. It is charged in the complaint that appellant W. R. Clemans, for the purpose of inducing respondents to enter into this contract, made false and fraudulent representations in five different and distinct particulars: First, that there were 1,800 acres of growing crop upon said Walla Walla lands, when in truth and in fact there were not to exceed 800 acres of growing crop; second, that 320 acres of good land in sec. 8, twp. 12 north, range 36 E., W. M., was a part of the tract in which respondents were purchasing an interest, when in truth and in fact it was not a part, and was the land of another; third, that certain valueless land, consisting of 320 acres in sections 4 and 9 of said lands and premises, was not a part of the tract in which respondents were about to purchase from appellant a one-fourth interest; fourth, that for the year 1912 the lands and premises in Walla Walla county produced from thirty-nine to forty-two bushels of wheat to the acre, when in truth and in fact for that season the premises produced only eleven bushels per acre; fifth, that there was due from Walter Kenworthy to W. G. Preston, upon the contract, as the purchase price to be paid for these premises, the sum of $ 33,000 and no more, when in truth and in fact there was due upon this contract the sum of approximately $ 39,000.
The complaint also sets out that appellant W. R. Clemans made such false and fraudulent representations in each and all of these particulars, knowing the same to be false and untrue, for the purpose of inducing respondents to convey to him the said tract of land belonging to them, mentioned and described as being in Latah county, and for the purpose of inducing them to make, execute and deliver to him a certain promissory note for the sum of $ 1,000; that respondents did not know and had no means of knowing that the fraudulent representations so made by appellant W. R. Clemans were false and fraudulent, and that, relying upon these representations and believing them to be true, they entered into a contract with said appellant for the purchase of his twenty-five per cent or one-fourth interest in and to the lands and premises mentioned and described as being in Walla Walla county, Washington; that as a consideration for this purchase, respondents by a good and sufficient deed conveyed to appellant W. R. Clemans the property mentioned and described as being in Latah county, Idaho, at an agreed price of $ 9,300, and made and delivered to him their promissory note in the sum of $ 1,000, and assumed and agreed to pay the unpaid balance due under the contract between W. G. Preston and wife and Walter J. Kenworthy, aggregating $ 33,000 as represented by appellant W. R. Clemans, and further assumed the payment...
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