Idaho State Merchants' Protective Association v. Roche

• Decision Date: 27 April 1933
• Docket Number: 5918
• Citation: 22 P.2d 136,53 Idaho 115
• Court: Idaho Supreme Court
• Parties: IDAHO STATE MERCHANTS' PROTECTIVE ASSOCIATION, a Corporation, Appellant, v. EDDIE B. ROCHE, Respondent

22 P.2d 136

53 Idaho 115

IDAHO STATE MERCHANTS' PROTECTIVE ASSOCIATION, a Corporation, Appellant, v. EDDIE B. ROCHE, Respondent

No. 5918

Supreme Court of Idaho

April 27, 1933

JUSTICES' COURTS-PLEADING, SUFFICIENCY OF-APPEAL AND ERROR-FILING OF BRIEFS.

1. Where respondent's rights were not prejudiced by appellant's delay in serving brief, motion to dismiss appeal was overruled (Supreme Court Rules of Practice, Rule 43).

2. Answer filed in justice's court is sufficient, if enabling person of common understanding to know what is intended (I. C. A., sec. 10-401).

3. Where evidence of fraud was introduced without objection plaintiff could not complain on ground answer was insufficient to support such defense.

4. Plaintiff's contention for first time on appeal that defendant was not entitled to rescind contract for fraud because not having done so within reasonable time held unavailable.

5. In action on note, allegations of answer and evidence held sufficient to sustain finding of fraud in inducing execution of contract for accounting course.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.

Action on promissory note. Judgment for defendant. Motion to dismiss appeal overruled. Judgment affirmed.

Judgment affirmed, with costs to respondent. Petition for rehearing denied.

F. M Bistline, for Appellant.

All of the essential elements of fraud must be pleaded and if the fraud alleged consists in failing to carry out a promise made, the pleading must show that when made there was no intent to fulfill it. (27 C. J. 35, sec. 153; Pocatello Security Trust Co. v. Henry, 35 Idaho 321, 206 P. 175 27 A. L. R. 337.)

A party seeking to rescind for fraud or false representations must do so within a reasonable time, and the right is lost by failure to act promptly on discovery of the fraud, or after it might have been discovered by the use of due diligence. (13 C. J., sec. 671, p. 616.)

Finis Bentley, for Respondent.

MORGAN, J. Budge, C. J., and Givens, Holden and Wernette, JJ., concur.

OPINION

MORGAN, J.

This is an action on a promissory note made payable and given to International Accountants Society, Inc., a foreign corporation, in payment for a course of instruction to be furnished to respondent by that corporation. The note was assigned to appellant for collection and action was commenced thereon in the court of a justice of the peace, resulting in judgment for plaintiff. The case was appealed to the district court and tried to a jury. At the conclusion of the introduction of evidence both parties moved for an instructed verdict, whereupon the jury was discharged and the court rendered judgment in favor of defendant, from which this appeal has been prosecuted.

The judgment of the district court is based upon the ground that the note is void because secured by fraud; also that the action cannot be maintained because, at the time of the transaction resulting in the giving of the note, International Accountants Society, Inc., was doing business in the State of Idaho without having complied with the laws of this state pertaining to foreign corporations doing business here; that the transaction whereby the note was obtained constituted doing business within the State of Idaho, and that appellant, as assignee for the purpose of collection only, is in no better position to maintain the action than said foreign corporation would be.

Respondent moved to dismiss the appeal on the grounds: 1. That the transcript was not served and filed within the time prescribed by Rule 23 of our rules of practice; 2. That the reporter's transcript was not procured, served and settled according to the provisions of Idaho Code Annotated, sec. 7-509, because of delay in serving and filing it; 3. That appellant's brief was not served within the time prescribed by Rule 43 of our rules of practice.

The delay in serving and filing the transcript is satisfactorily explained in an affidavit filed by appellant's counsel in opposition to an objection to an order being made by the trial judge settling the reporter's transcript, that objection being based on the same ground as is the motion to dismiss, so far as it relates to the transcript. There was slight delay in serving the brief, but it does not appear the rights of respondent have been in any way prejudiced thereby and the motion to dismiss the appeal is overruled. (Clayton v. Barnes, 52 Idaho 418, 16 P.2d 1056.)

Appellant attacks the sufficiency of the answer to support the finding that fraud was perpetrated in procuring the note, and insists the evidence is insufficient to sustain that finding. The second and further affirmative defense, set up in the answer filed in the justice's court, is as follows:

"1. That as a part of the consideration for the signing of the note described in paragraph two of plaintiff's complaint E. R. Clark, the Idaho representative of the International Accountants Society, Inc., agreed with the defendant to establish a class in the City of Pocatello, for the purpose of working on the course of instruction purported to be offered by said corporation, and that the said E. R. Clark would remain in Pocatello and take charge of said class personally and instruct and assist said class in said course; that defendant signed said note upon the representations of said E. R. Clark, as agent for said corporation, that defendant's enrollment would complete the required number for said class, and that if defendant enrolled and signed said note, the said class would be formed and conducted as agreed by the said E. R. Clark.

"2. That as a part of the consideration for the signing of the said note defendant was to receive from the payee therein the said International Accountants Society, forty standard lessons of an accounting course, and said...