Larsen v. Lootens

• Decision Date: 17 January 1922
• Citation: 102 Or. 579,203 P. 621
• Parties: LARSEN ET AL. v. LOOTENS ET AL.
• Court: Oregon Supreme Court

203 P. 621

102 Or. 579

LARSEN ET AL. v. LOOTENS ET AL.

Supreme Court of Oregon

January 17, 1922

Department 1.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

Suit by John Larsen and another against Bert Lootens and another. Decree for plaintiffs, and defendants appeal. Affirmed.

This is a suit for the rescission of an exchange of properties between plaintiffs and defendants, whereby defendants traded to plaintiffs a ranch situated in the Dry Lake flat, in Crook county, Or., together with 20 head of cattle, 14 horses, some chickens, pigs, farming implements, and equipment, and received therefor from plaintiffs a lot and an 8-room house in Beaumont addition in the city of Portland, Or., together with furniture and fixtures.

The complaint alleges several fraudulent representations on the part of defendant Bert Lootens, whereby plaintiffs were induced to make the trade. These may be fully summarized as follows: (1) That the premises were good, level valley land (2) that 80 acres were under cultivation and seeded to rye (3) that said 80 acres raised in the year 1918 enough rye and far in excess thereof, to feed 25 head of cattle and 5 horses; (4) that said land would raise a large quantity of potatoes and other vegetables; (5) that defendants in the year 1918 raised and sacked upon said land 400 sacks of potatoes; (6) that there was a 9 months' school maintained near said premises, which plaintiffs' two children could attend; (7) that before closing the trade plaintiff John Larsen visited the premises in company with defendant Bert Lootens, but the land was entirely covered with snow, so that the plaintiff was thereby unable to ascertain the truth or falsity of the representations concerning the character of the soil made to plaintiffs, but that Lootens showed him large quantities of fine rye straw which he claimed to have raised on the premises, and which he represented to be the straw remaining after having fed 25 head of cattle and 5 horses during the winter. The plaintiffs now charge that the straw was not raised on the place, but was hauled there from neighboring land. They say also that defendant Bert Lootens exhibited to plaintiff John Larsen 150 sacks of first-class potatoes which he claimed were raised on the land, when in fact they had been grown on a tract of land several miles distant. The complaint alleges that all these representations were willfully false, and made with the fraudulent intent to induce plaintiffs to make the trade that, relying upon them, they were induced to make the exchange of properties; that upon learning of the fraud that had been practiced upon them plaintiffs immediately rescinded the trade, and requested and demanded of the defendants that they reconvey the real and personal property plaintiffs had given in exchange, and offered to reconvey the property received by plaintiffs; that plaintiffs continued said offer until this suit was instituted, and that they now submit a good and sufficient deed to convey said real property to defendants, for delivery to defendants at such time as the court shall direct, and tender to the court all the personal property received by them in the exchange. They say they are ready, able, and willing to deliver all the property received by them, except, however, to avoid the expense of feeding the cattle, plaintiffs sold 20 head of them to one C. M. Gulodson for $1,000, which sum plaintiffs now tender in lieu of said cattle, and they agree to pay such additional amount as the court may find the cattle to have been worth over and above $1,000.

There was a demurrer to the complaint on the following grounds:

"Come now the defendants, by Henry S. Westbrook, their attorney and demur to the second amended complaint of the plaintiffs filed herein, upon the ground and for the reason that the same does not state facts sufficient to constitute a cause of suit against these defendants or either of them, namely, upon the following points:

"First. No facts are alleged in said second amended complaint, alleging any damages to the plaintiffs; all statements of damages are conclusions of law; actual damages must be alleged in particular; if not, an indispensable element of fraud is lacking.

"Second. It appears from the face of said complaint that, since this action was instituted, without the consent of the defendants, and without authority of the court, plaintiffs have sold the 20 head of cattle mentioned in the complaint, and received $1,000 therefor, and in addition to this act promise and agree to pay whatever the court finds said cattle to be worth more than said $1,000; this conduct and these allegations are inconsistent with rescission, and constitute an affirmance of the contract, for which reason plaintiffs, if they have any cause of action, have an action at law for damages, and not a suit in equity for rescission of contract.

"Third. Plaintiffs' pretended tender to maintain statu quo of property is neither good in law nor equity, upon either rescission or for damages, or at all, in that plaintiffs must not only tender what they received upon said sale, but must tender the full value of the property sold; and agreement to pay an indefinite sum, to be fixed at a future time, upon litigation, is not a tender sufficient in a suit for rescission for fraud.

"Fourth. That before instituting a suit to rescind a contract plaintiffs must first offer and tender back a good and sufficient deed, and bill of sale, reconveying both the real and personal property to the defendants; said complaint shows affirmatively this was not done; shows affirmatively no deed or bill of sale was ever offered or tendered to defendants; affirmatively showing by an allegation of a conclusion of law that said deed is now tendered to court, for delivery as the court may direct; no bill of sale is tendered in any way. The tender of a deed must be unconditional, and before suit.

"Fifth. Courts never presume damages; allegations and proof thereof must be clear and specific; no allegations of damages in any way or manner appear in said complaint."

The demurrer being overruled, the defendants denied the alleged false representations, and made the following allegations:

'That before said trade or exchange was consummated, and before said property was delivered, the plaintiff John Larsen, for himself and for his said wife, went to the said property in Crook county, Or., and examined the same, and in said examination saw the property, examined the soil, ascertained the location thereof, saw that part thereof which had been cultivated, saw and knew that said land was valuable chiefly for a cattle ranch and for grazing and was satisfied therewith; that thereafter, on or about the 8th day of March, 1919, the said plaintiffs moved upon said land in Crook county, Or., took possession of the same, and all said personal property and continued in possession thereof from about the 8th day of March, 1919, without complaint or objection of any kind until the commencement of this suit on or about the 11th day of June, 1919; that prior to the commencement of this suit, and at the time and date thereof, plaintiffs at no time or place and in no way or manner offered to rescind said contract, and never at any time offered or tendered back said property or any deed, bill of sale or other conveyance thereof; that since the institution of said suit plaintiffs have remained in possession and control of said property, and since the institution of this suit, the particular day and date being to defendants unknown, without an order from the above-entitled court, and without the knowledge or consent of the defendants, plaintiffs have sold and disposed of various articles of said personal property, the particular ones being to defendants unknown, except the said 20 head of cattle which plaintiffs sold for the sum of $1,000, and that the plaintiffs kept and retained said sum of $1,000 and failed and neglected to tender the same unto the court upon the filing of their first amended complaint herein, and never at any time offered and tendered said sum of money in lieu of said cattle to the defendants; that by reason thereof plaintiffs have ratified and affirmed said exchange, and, said exchange of said property being ratified by plaintiffs, plaintiffs are not entitled in law or equity to a rescission thereof.

"And for a second further and separate answer and defense to the second amended complaint of the plaintiffs, defendants allege:

"That the spring of 1919, namely, from about the 1st of March 1919, to about the 11th day of June, 1919, in Crook county, Or., and at the place where said Crook county property was situated, was unusually and exceptionally dry, and both the snowfall and rainfall were and had been unusually and exceptionally light; that by reason thereof the grass, hay, grain, vegetables, and crops were a failure; that in addition thereto said section was visited by an early, exceptional, and unusually heavy frost for all of which reasons for the year 1919 said section, said crops of grass, hay, grain, and vegetables were practically and completely a failure; that plaintiffs remained in possession of said property, satisfied therewith, and without any objection thereto until plaintiffs ascertained by reason of said weather conditions that said crops would be a failure and that said conditions were not the fault in any way or manner of the defendants and that said conditions and not any representations of any kind of the defendants were and are the reasons of plaintiffs' admitted rescission of said contract herein.

"And that for a third and separate answer, and by way of explanation to the allegations contained in said complaint plaintiffs allege that the plaintiffs had upon...