Lott v. Taylor

• Decision Date: 11 May 1939
• Docket Number: 6651
• Citation: 90 P.2d 975,60 Idaho 263
• Parties: HYRUM F. LOTT and GLENDORA LOTT, His Wife, Appellants, v. LYMAN TAYLOR, Jr., and RACHEL S. TAYLOR, His Wife, Respondents
• Court: Idaho Supreme Court

90 P.2d 975

60 Idaho 263

HYRUM F. LOTT and GLENDORA LOTT, His Wife, Appellants, v. LYMAN TAYLOR, Jr., and RACHEL S. TAYLOR, His Wife, Respondents

No. 6651

Supreme Court of Idaho

May 11, 1939

VENDOR AND PURCHASER-FRAUD-BURDEN OF PROOF-EVIDENCE-APPEAL-BRIEFS-ASSIGNMENTS OF ERROR, WHEN NOT CONSIDERED.

1. In action for rescission of contract to purchase realty, fraud would not be presumed, and plaintiff had burden of establishing all elements of fraud alleged by clear and convincing evidence.

2. In action to rescind contract to purchase realty, evidence sustained finding that vendor made no actionable false statements as to amount of land under cultivation or amount of land having weed infestation, and that vendee was put upon notice and did not rely upon representations.

3. Where trial court's refusal to admit certain evidence was assigned as error but briefs did not cite authorities or argue the assignment, the matter would not be considered by reviewing court.

APPEAL from the District Court of the Ninth Judicial District for Jefferson County. Hon. Guy Stevens, Presiding Judge.

Appellants brought suit to rescind a contract of purchase of real estate. From a judgment for respondents appellants appeal. Affirmed.

Judgment affirmed. Costs to respondents.

Wm. P Hemminger and O. A. Johannesen for Appellants.

"In the case of agricultural lands, a contract for their purchase may be rescinded by the vendee on discovering that he had been deceived by false representations of the seller as to the character, fertility or chemical composition of the soil as to its adaptibility to the growing of particular crops." (Black on Rescission, sec. 425, p. 1052; Wilson v. Sunnyside Orchard Co., 33 Idaho 501, 196 P. 302; Becker v. Sunnyside L. & I. Co., 76 Wash 685, 136 P. 1147; Field v. Hood River Orchard Land Co., 75 Ore. 223, 146 P. 98; Woodward v. Western etc. Co., 134 Minn. 8, 158 N.W. 706, L. R. A. 1917C, 270; Griffith v. Gifford, 97 Wash. 22, 165 P. 874, 2 A. L. R. 1509.)

C. A. Bandel for Respondents.

Fraud is never presumed, but it must be alleged and proven by clear, satisfactory and convincing evidence. And a purchaser who makes an independent investigation is in no position afterwards to claim fraud because of misrepresentation of seller in that purchaser having opportunity of securing means of information will be presumed to have relied upon his own judgment. (Smith v. Johnson, 47 Idaho 468, 276 P. 320; Parker v. Herron, 30 Idaho 327, 330, 164 P. 1013; Johnson v. Holderman, 30 Idaho 691, 167 P. 1030.)

Where no fraud or artifice is used to prevent inquiry or investigation buyer cannot recover on ground he was misled by seller. (Breshears v. Callender, 23 Idaho 348, 349, 366, 131 P. 15.)

GIVENS, J. Ailshie, C. J., and Budge, Morgan and Holden, JJ., concur.

OPINION

GIVENS, J.

--March 31, 1937, appellants contracted to purchase from respondents certain described real property in Jefferson county, together with one hundred fifty inches of water appurtenant thereto. In October, that year, appellants notified respondents they desired to rescind, claiming they had been defrauded as to the amount of land under cultivation and its freedom from morning glory and Canadian thistle. Upon respondents' refusal to rescind appellants instituted this action for rescission resulting, after a trial before the court without a jury, in judgment for respondents rendered by the trial court on these findings:

"VI

"The court further finds from the evidence that the defendants did not represent to the plaintiffs that there was only one-fourth of an acre of morning glory or other noxious weeds upon the above described land, and in this connection the court finds that the plaintiffs were well informed before the said contract dated March 31st, 1937, was entered into that there was considerable morning glory and some other noxious weeds on the above described premises and plaintiffs failed to make any further investigation as to the quantity of lands so infested with noxious weeds after being so informed prior to the making of said contract dated March 31, 1937.

"VII

"The court further finds that it was not represented to the plaintiffs by the defendants, or by anyone in behalf of said defendants, that there were 60 acres of cultivated land on the above described premises, it having been represented that there were about 60 acres of land in cultivation and that it appears from the evidence that there is a little in excess of 52 acres of land cultivated upon said premises, and that there are approximately 6 acres of additional land upon said premises that can be placed under cultivation.

"VIII

"The court further finds that there is no evidence in the record of this case wherein it has been shown that the plaintiffs have suffered any damage or injury by reason of any statements or representations which may have been made to said plaintiffs by the defendants or by anyone in behalf of said defendants. The court finds that the plaintiffs have failed to prove by clear and convincing evidence the material allegations of the amended complaint."

Fraud will not be presumed and appellants had the burden of establishing all the elements of the fraud alleged by clear and convincing evidence. (Fehr v. Haworth, 33 Idaho 96, 190 P. 248; Crumpacker v. Bank of Washington County, 38 Idaho 534, 223 P. 229; Smith v. Thomas, 42 Idaho 375, 245 P. 399; Smith v. Johnson, 47 Idaho 468, 276 P. 320.)

Mr Elser, a prior tenant on the land, testified he told appellants there was some weed infestation but did not state a definite amount and that in answer to appellants' inquiry as to what was the matter with the place he answered "nothing except the morning glory." Other witnesses whom appellants knew were well acquainted with the land, informed...