Land v. Hea
| Decision Date | 28 September 1911 |
| Citation | 118 P. 506,20 Idaho 250 |
| Parties | KATE L. LAND, Respondent, v. WALTER HEA and JOHN HEA, Appellants |
| Court | Idaho Supreme Court |
HORTICULTURAL INSPECTION LAW-INNOCENT PURCHASER-WANT OF CONSIDERATION.
(Syllabus by the court.)
1. Where W. imported fruit trees and nursery stock into this state and sold and disposed of the same in violation of the provisions of sec. 1318 of the Rev. Codes, which requires every person to make application and procure a certificate from the State Board of Horticultural Inspection before importing and selling such stock, and sold a part thereof to L., for which he received the assignment of a contract to purchase land, and subsequent to such sale the trees were examined by the horticultural inspector and found diseased and infested with pests, and were destroyed in accordance with the statute, and there was consequently a total failure of consideration for the assignment of such contract, and where W. thereafter assigned such contract to J. in consideration of the cancellation by J. of a pre-existing indebtedness for money loaned in purchasing and shipping the trees to this state: Held, that J. was not an innocent purchaser for value so as to enable him to successfully defend an action prosecuted by L. to cancel the assignment of the contract for want of consideration.
2. ID.-Where, under such circumstances, L. tendered and paid into court all the expense and interest thereon that J. had incurred under the assignment of contract for the sale of land, held, that in equity and good conscience J. should be compelled to surrender up and cancel the contract upon receipt of the amount actually expended under the alleged purchase, and that the pre-existing indebtedness from W. to J. would still exist in favor of J.
APPEAL from the District Court of the Fourth Judicial District, in and for Twin Falls County. Hon. Edward A. Walters, Judge.
Action by plaintiff to rescind a contract and cancel an assignment thereof. Judgment for plaintiff and defendants appeal. Affirmed.
Judgment affirmed. Costs of this appeal taxed against the appellant, Walter Hea.
Sweeley & Sweeley, for Appellants.
The cancellation of the bona fide indebtedness in the purchase of the real estate was of itself and alone sufficient consideration to sustain the purchase. (Knox v McFarran, 4 Colo. 586; Murray v. National Concordia, 5 Kan. App. 456, 49 P. 326; Schluter v Harvey, 65 Cal. 158, 3 P. 659; Frey v. Clifford, 44 Cal 355.)
The respondent was guilty of such laches in pressing her claim as to have waived her right, if any she had, and should not be permitted to set up her claim as against John Hea.
It was her duty to rescind at once upon the discovery of the facts. Equity demands of her diligence in her own protection in giving notice, and pursuing her remedy, as well as for the protection of those who might innocently become interested in the contracts. (Barfield v. Price, 40 Cal. 535; Blen v. Bear River etc. Min. Co., 20 Cal. 602, 81 Am. Dec. 132; 3 Morr. Min. Rep. 435; Caldwell v. Ruddy, 2 Idaho 1 (5), 1 P. 339; Cowen v. Harrington, 5 Idaho 329, 48 P. 1059.)
Longley & Hazel, for Respondent.
"The assignee of a non-negotiable chose in action stands exactly in the place of his assignor, has no greater rights than his assignor in the thing assigned, and takes it subject to all of the defenses, such as illegality in its inception, which arose out of the original transaction."
This action was commenced by the plaintiff, who is respondent here, to have a certain contract and the assignment thereof canceled and declared void, and for the cancellation of a deed issued under such contract. Judgment was entered for the plaintiff and the defendants appeal.
Some time prior to the 13th of May, 1908, the appellant, Walter Hea, shipped from the state of Iowa to Twin Falls, in this state, two carloads of fruit trees and nursery stock. After receiving the same at Twin Falls, he began selling it off to such persons as desired to purchase and finally traded a large quantity thereof, amounting to something over $ 2,000 in value, to the respondent herein, for which he received an assignment of a contract for deeds to two lots in the city of Twin Falls. Hea had failed and neglected to make application to the State Board of Horticultural Inspection under the provisions of secs. 1318 and 1319, Rev. Codes, and had failed to procure a certificate authorizing him to engage in the business of importing and selling fruit trees and nursery stock. He never at any time pretended to comply with the provisions of the statute, secs. 1318 to 1322, Rev. Codes. Walter Hea borrowed money necessary to purchase the nursery stock and make the shipment from his father, John Hea, and the latter came from the state of Illinois to Twin Falls subsequent to the shipment, and was with the son a part of the time and had partial charge of the nursery stock for a while, and made at least one sale for the son during the time. Subsequent to the making of the sale of the trees to the respondent, they were examined by the state horticultural inspector and found to be diseased and infested with pests, and were thereupon destroyed by the inspector as required by law.
Some time in May, 1909, Walter Hea assigned his contract for the lots, which he had received from respondent for the trees, to his father, John Hea. No cash was paid or consideration passed at the time, but the consideration for the assignment from the son to ...
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