Knappen v. Freeman

• Decision Date: 12 December 1891
• Citation: 50 N.W. 533,47 Minn. 491
• Parties: KNAPPEN v FREEMAN.
• Court: Minnesota Supreme Court

47 Minn. 491

50 N.W. 533

KNAPPENvFREEMAN.

Supreme Court of Minnesota.

Dec. 12, 1891.

(Syllabus by the Court.)

1. In an action on a note, an answer alleging that the note was given upon a purchase of real estate by defendant from plaintiff; that defendant was induced to make the purchase by the fraud of plaintiff, (setting it forth;) that, as soon as defendant discovered the fraud, he commenced suit to rescind, and tendered a reconveyance on condition that plaintiff surrender the note,-is good.

2. Bringing an action to rescind a contract is a sufficient disaffirmance of it for the purpose of the action.

3. In the complaint in such an action it is not necessary to allege a disaffirmance, or a previous offer to return what plaintiff received upon the contract, nor make an offer to do what the court may require as a condition of granting relief.

4. When a party in making a contract makes an affirmation positive in form, it is to be taken as made as of his own knowledge, and not as upon information or belief.

5. When a married woman employed her husband to negotiate a sale of her real estate, and in such negotiation he made false representations, upon an action by the purchaser to rescind the sale the representations are to be held as though made by herself. She cannot retain the benefits of his negotiations, and repudiate the means by which they were obtained.

6. When one has a right to rescission of a purchase on the ground of fraud, in an action for that purpose the value of the property is immaterial.

7. Where, in an order for judgment for the recovery of money upon a trial by the judge, the gross sum stated is, on the face of the decision, the result of a mere error in computation, or in adding up items, the proper remedy is by motion to correct it.

Appeal from district court, Hennepin county; SMITH, Judge. Affirmed.

Action by Sarah L. Knappen against Orlando H. Freeman on a note. Judgment for defendant. Plaintiff appeals.

Knappen & Dalby and James O. Pierce, for appellant.

Flannery & Cooke, for respondent.

GILFILLAN, C. J.

Action on a promissory note. The answer contains-First, what is evidently intended for a defense to the note; second, what is pleaded as a counter-claim, and on which affirmative relief a judgment for money is demanded. The defense alleges that the note was given upon and for a part of the consideration of a sale and conveyance of real estate by plaintiff to defendant. That, to induce him to make the purchase, the plaintiff falsely and fraudulently represented to him that the land was high and rolling, covered with a growth of scrub oak, and good farming land suitable for cultivation, and that he made the purchase relying on such representations, and as consideration therefor paid in cash, on making the contract of sale, $200; and on receiving the deed, $550; assumed the payment of a mortgage on the land; and executed the note in suit. That in fact the land was not high and rolling, was not covered with scrub oak, was a swamp and lake covered with water, and unfit for cultivation. That immediately on discovering the fraud he commenced an action to have the note delivered up and canceled, and executed and tendered to plaintiff, on condition of her returning the note to him, a deed reconveying the real estate, with covenants of warranty against any acts done by him. The counter-claim sets forth the same transaction; the same representations, and their falsity; the payment by defendant, before ascertaining the falsity of the representations, of taxes, of interest on the mortgage, which he assumed to pay, and on the note in suit; but does not allege a tender of a reconveyance, and demands judgment for the various sums so paid by him, with interest. It is strictly a rule of pleading that each cause of action, defense, or counter-claim must be complete in itself, and that no fact alleged in one will aid another, unless realleged or incorporated by reference in the latter. When defendant began his evidence an objection was made to his introducing any evidence, on the ground that the matter stated as a defense is no defense; that it is insufficient as an answer of a former action pending, and the fraud alleged is no defense to the action on the note, without asking the affirmative relief; that the contract be rescinded; in other words, that the fraud is not matter of defense, but of counter-claim, had it been pleaded as such. We do not think the answer was intended as a plea of a former action pending, but that it was intended to show as a defense that the defendant had a right to rescind, and had rescinded, the contract upon which the note was given. It alleges the doing by defendant of all that could be required of him to constitute a rescission, if he had, as he undoubtedly had, on the allegations of the answer, a right to rescind. The objection was properly overruled.

It is claimed that the counter-claim, as alleged in the answer, is insufficient, because it does not tender back anything, or allege any previous attempt at rescission, or any disaffirmance by defendant of the contract, or any demand for rescission. The demand in the counter-claim of judgment for all the moneys he had paid upon or in consequence of the contract, of restoration to him of all he had parted with by reason of it, was a sufficient disaffirmance of the contract and demand for its rescission; for such a demand could be based only on a disaffirmance and rescission. When a party seeks to rescind a contract by his own act, he must give the other party notice of his rescission, and restore or offer to restore to him whatever he received from him under or by reason of the contract. In other words, he cannot repudiate its obligations and retain its benefits. When, however, he seeks the aid...