Laverents v. Gattis

• Citation: 60 Wyo. 285,150 P.2d 867
• Decision Date: 15 August 1944
• Docket Number: 2285
• Parties: PAUL LAVERENTS, Plaintiff and Appellant, v. MILTON V. GATTIS and IRENE M. GATTIS, his wife, Defendants and Respondents
• Court: United States State Supreme Court of Wyoming

150 P.2d 867

60 Wyo. 285

PAUL LAVERENTS, Plaintiff and Appellant, v. MILTON V. GATTIS and IRENE M. GATTIS, his wife, Defendants and Respondents

No. 2285

Supreme Court of Wyoming

August 15, 1944

Appeal from District Court, Laramie County; Sam M. Thompson, Judge.

Action by Paul Laverents against Milton V. Gattis and his wife for defendants' alleged fraud and deceit with regard to exchange of properties between the parties. From a judgment for defendants, plaintiff appeals.

Affirmed.

For the plaintiff and appellant there was a brief by Charles E. Lane and William O. Wilson, both of Cheyenne, Wyoming, and oral argument by Mr. Lane.

POINTS OF COUNSEL FOR APPELLANT

Where the contract is oral, a general release without consideration is void, but an oral release is binding if supported by consideration. Tippett v. Shaw, 4 Tenn. Appl. 132.

A bilateral contract may, before breach, be discharged or varied by substituting a new one for it--but on new consideration. Frankfurt-Barnett Co. v. Prym Co L.R.A. 1918 A. 606; Emerson v. Slater, 22 How. 29, 41 16 Law. Ed. 360.

A contract may be discharged at any time before performance is due by a new agreement validly made. Leake on Contracts, 6th Ed. 576.

Fraud is never presumed, but it is equally true that it is almost impossible to prove it by direct evidence. It is only by reasonable inference, or deductions as a general rule that it can be established. In Re Woodward Avenue in the City of Detroit, (Mich.) 297 N.W. 468, (297 Mich. 235.)

One contracting in writing to deliver good title to certain property, is presumed to know whether he can carry out the contract and purchaser may rely on good faith contract. Johnson v. McMullen, 3 Wyo. 237; Teachenor v Tibballs (Utah) 86 P. 483; Thatcher et al, v. Darr, 27 Wyo. 452.

The assignment of a purchaser's interest under a land contract must be in writing to be effectual. Wilkie v Womble, 90 N.C. 254; Dougherty v. Catlett, 21 N.E. 932.

When a vendee disposes of his contract interest, he must make an assignment thereof in writing to the purchaser. He is not relieved from liability thereby unless release be made by the vendor. Krueger v. Campbell (Mich.) 250 N.W. 286.

An estoppel cannot be founded upon words, acts, or silence, unless they were intended to lead the party who seeks to set up the estoppel, to act upon them, and he did act upon them, and act to his injury. Halleck v. Bresnahen, 3 Wyo. 73; Snowball v. Maney Bros. & Co., 39 Wyo. 98.

Estoppel not permitted to be set up as against a situation created by false representations. Baylies v. Vanden Boom, 40 Wyo. 411.

By 'substantial evidence' is not meant that which goes beyond a mere 'scintilla of evidence,' since evidence may go beyond a mere scintilla and yet not be substantial evidence.

Substantial evidence must possess something of substance and relevant consequence and not consist of vague, uncertain, or irrelevant matter, not carrying the quality of proof or having fitness to induce conviction. Milford Copper Company v. Industrial Commission (Utah) 210 P. 994; Jenkins & Reynolds Co. v. Alphena Portland Cement Co., 147 F. 641, 643, 77 C.C.A. 625, citing Minahan v. Grand Trunk Western Ry. Co., 138 F. 37, 70 C.C.A. 463; Grand Trunk Ry. Co. v. Ives, 12 S.Ct. 679, 144 U.S. 408, 36 L.Ed. 485.

It is one of the elementary rules that there shall be a correspondence between the allegata and the probata. First Natl. Bank v. Swan, 3 Wyo. 356, 361.

For the defendants and appellants there was a brief by John C. Pickett and Norman B. Gray, both of Cheyenne, Wyoming, and oral argument by Mr. Gray.

POINTS OF COUNSEL FOR RESPONDENT

The Trial Court's findings are abundantly supported by substantial evidence.

Representation of value of equity is mere expression of opinion and is not fraud.

There can be no doubt that it is the general rule that an expression of opinion as to values is not fraud. McDonald v. Mulkey, 32 Wyo. 144, 231 P. 668.

To constitute a fraud through the practice of which another is induced to transfer value, there must be something more than false representation. * * * A party about to consummate a contract by which he parts from property cannot, when the opportunity is before him, and there is nothing in the situation of the parties to prevent investigation, decline to prosecute a reasonably diligent inquiry, refuse to exercise his own judgment, and then be heard to complain of an imposition or fraud practiced on him. First National Bank v. Swan, 3 Wyo. 356; Baird v. Eflow Inv. Co., et al., 76 Utah 232, 289 P. 112.

Where evidence is conflicting and there is substantial evidence supporting trial court's finding and judgment the Supreme Court will not substitute its own conclusions on appeal. Swanson v. Johnson, 58 Wyo. 1; Huber v. State Bank, et al. 32 Wyo. 357; Brown v. Citizens Nat'l. Bank, 38 Wyo. 469; Kaleb et al v. Modern Woodmen, 51 Wyo. 116; Wilde v. Amoretti Lodge Co., 47 Wyo. 505.

There must be substantial evidence in support of the verdict, that is evidence that is reasonable and consistent with the circumstances and probabilities in the case as to raise a fair presumption of its truth when weighed against the opposing evidence. Wilde, State Examiner v. Amoretti Lodge Co., 47 Wyo. 505; Robinson v. Gallagher Transfer and Storage Co., 58 Wyo. 69.

A man who alleges fraud must clearly and distinctly prove the fraud he alleges, and the proof must be clear and sufficient to satisfy the mind and conscience of the existence of fraud. First National Bank v. Ford, 30 Wyo. 110; Brown v. Citizens Bank, 38 Wyo. 469.

Fraud is never presumed, but must be established by clear, unequivocal, and convincing proof. United States v. California Midway Oil Co., 259 F. 343.

Appellant should be charged with the cost of the supplemental abstract. Civic Association of Wyoming v. Railway Motor Fuels, Inc. 57 Wyo. 213; Simpson v. Occidental Building & Loan Ass'n et al., 45 Wyo. 425.

BLUME, Justice. KIMBALL, C. J., AND RINER, J. concur.

OPINION

BLUME, Justice.

This action was brought on April 18, 1942, by the plaintiff, Paul Laverents, against the defendants, Milton V. Gattis and Irene M. Gattis, his wife, and was based upon the fraud and deceit of the defendants. The case was tried without the intervention of a jury. The court on April 21, 1943, entered judgment in favor of the defendants and from that judgment the plaintiff has appealed to this court.

The basic facts, as shown by the evidence and as found by the court, and without at this moment entering into the controversial facts herein, are substantially as follows:

Plaintiff had been in the real estate business practically all his life, and he testified that he had some legal training. Defendant Milton V. Gattis was a mechanic working for the United Air Lines. On or about November 10 1938, after negotiations carried on for a number of days previously, the plaintiff and the defendants herein entered into an oral agreement for the exchange of properties situated in the City of Cheyenne, Wyoming. The plaintiff was then owner of Lot 12, Block 13, in the Holdredge Addition to the City of Cheyenne. He had erected a building on the premises which was not paid for. The property was valued between the parties at the sum of $ 5,500. An arrangement had been made for the plaintiff to pay for the building through a mortgage guaranteed by the Federal Housing Administration for the sum of $ 4,300, which mortgage was subsequently executed by the defendants. The plaintiff, accordingly, had an equity in the property of substantially the sum of $ 1,200. The defendants were in possession of Lot 4, Block 310, in the City of Cheyenne. They were in possession in pursuance of a written contract from one Tucker. It was agreed between the parties that the property was of the value of approximately $ 2,500. $ 840.00 had been paid on the property under the contract. Improvements of the amount of approximately $ 600.00 had been made thereon, and it was understood by the parties that the defendants had an equity in the property substantially in the sum of $ 1,200. It was agreed that the contract which the defendants held from Tucker should be turned over to the plaintiff, he assuming further responsibility thereunder. In other words, the agreement substantially was to the effect that plaintiff's equity in his property should be turned over to the defendants in exchange for the equity of the defendants in their contract, the mortgage to the Federal Housing Administration to be executed by the defendants. On November 19, 1938, the defendants, with the permission of the plaintiff, moved into the Laverents property, namely Lot 12, Block 13, above mentioned; they have been in possession thereof ever since and have made improvements thereon valued at $ 400-$ 500. The plaintiff did not on that day take possession of the property theretofore held by the defendants. The payments on the Tucker contract were due on the 20th day of each month in the sum of $ 20 per month. The last payment made on that contract had been made on September 20, 1938. A payment was due on October 20 following which was not paid. The contract provided for a period of 30 days' grace, during which no default would exist in the payments on the contract, so that the time of grace expired on November 20, 1938. The payment was not made at that time, and when on November 21, 1938, plaintiff and the defendant, Milton V. Gattis, went to the house, Tucker, who in the meantime had taken possession, refused to let them enter, and an offer by Gattis to pay the $ 20 then delinquent was refused. On the following day Tucker served a notice of cancellation of the contract on both plaintiff and on the defendants. A few days thereafter plaintiff met Tucker, who agreed...