Milton v. Hare

• Decision Date: 17 September 1929
• Citation: 280 P. 511,130 Or. 590
• Parties: MILTON v. HARE ET AL.
• Court: Oregon Supreme Court

280 P. 511

130 Or. 590

MILTON v. HARE ET AL.

Supreme Court of Oregon

September 17, 1929

In Bank.

Appeal from Circuit Court, Multnomah County; T. E. J. Duffy, Judge.

Action by Nellie M. Milton against William G. Hare and others. Judgment for defendants, and plaintiff appeals. Affirmed.

This action was instituted to collect damages from defendants. Defendants are attorneys at law admitted to practice and engaged in the active practice of that profession in this state. Plaintiff had exchanged land situated in the city of Portland for some land in the county of Washington near Gaston owned by A. C. Lohmire. Said Lohmire accepted the real property in the city of Portland subject to a mortgage to secure the sum of $2,200 for which he conveyed to plaintiff a tract of agricultural land in Washington county subject to a mortgage to secure the sum of $3,600. Plaintiff for the purpose of effecting the trade executed a second mortgage on the Washington tract in favor of Lohmire to secure the payment of $2,000. In her complaint plaintiff alleges her Portland property to be worth the sum of $10,500. She alleges that Lohmire represented to her said Washington county farm was worth the sum of $17,500. Omitting the formal parts about which no question has been raised and the description of the real property, which is unnecessary to a proper understanding of the complaint, the substance of the complaint is as follows:

'That at all the times herein mentioned the defendants were and now are duly licensed attorneys, authorized to practice law in all the Courts of the State of Oregon.

"That on or about the first day of September, 1922, the plaintiff was the owner of that certain described property, situated in the County of Multnomah, State of Oregon, of the reasonable value of $10,500.00, subject to mortgage of $2,200.00, described as follows: * * *

"That on or about the said 1st day of September, 1922, one A. C Lohmire for the purpose of cheating and defrauding this plaintiff, falsely and fraudulently represented and induced her to believe that he was the owner of the following described real property, situated in Washington, County Oregon, which was worth the sum of $17,500.00, and that he paid the said amount therefor. * * * subject to a mortgage of $3,600.00 and fraudulently represented that the land included in said description was good agricultural land capable of being successfully cultivated and farmed and that same was well located and had a good natural drainage which was false and which was known by said Lohmire to be false.

"That this plaintiff trusted and believed the statements of the said A. C. Lohmire, that the said A. C. Lohmire knowingly made the said representation for the purpose of defrauding this plaintiff, knowing same were false and knowing this plaintiff trusted and believed the same and induced this plaintiff to exchange the certain property above described situated in the City of Portland, Oregon, for the reasonable value of $10,500.00 with mortgages of $2,200.00 thereon, for the above described property and persuaded and induced this plaintiff in addition thereto, to give him a mortgage of $2,000.00 on the said property, in addition to the $3,600.00 that was already on the said property.

"That this plaintiff never had seen the said property, situated in Washington County, nor never was given an opportunity to do so, and knew nothing about the value thereof, except by the statements of the said A. C. Lohmire, which she trusted and believed.

"That the said statements of A. C. Lohmire were false and made for the purpose of inducing this plaintiff to exchange the property, under the conditions above named, and the said A. C. Lohmire at the time of making said statements knew that they were false, and that the plaintiff trusted and believed the statements of said Lohmire which were false and known by said Lohmire to be false.

"That as soon as this plaintiff discovered the character of the land she objected thereto and demanded that the said A. C. Lohmire re-deed her property to her and offered to transfer to said Lohmire the property deeded by him, but he continually protested to her that he would sell the property in Washington County for enough to pay the mortgage and $17,500 more, and thereby caused and induced her to delay proceedings for the rescission of said exchange of properties on account of said fraud and misrepresentation.

"That said negotiations with said A. C. Lohmire and the delay in bringing suit to rescind said exchange occasioned thereby continued until on or about the 14th day of April, 1924, when one W. C. Schantin, the then owner and holder of said mortgage of $3,600.00 commenced a suit against the plaintiff in the Circuit Court of the State of Oregon for Washington County to foreclose said mortgage and making said A. C. Lohmire a party defendant therein and that soon thereafter, to-wit, on or about the 6th day of June, 1924, he, the said A. C. Lohmire, filed an answer and cross complaint in said suit against this plaintiff to foreclose the said mortgage for $2,000.00 made by plaintiff to him as a part of said transaction for the exchange of said properties, and which he had by reason of the aforesaid fraud and misrepresentation induced her to give him.

"That thereafter, to-wit, on or about the 1st day of July, 1924, plaintiff employed and retained said defendants as her attorneys to appear for her and to protect her rights and interest in said suit and to recover said property so conveyed to Lohmire in said exchange of property and to take all such steps and proceedings as were necessary or proper therein to procure a rescission of said exchange of properties and to procure for her a return of her said property so conveyed to said Lohmire or its value and that each of said defendants advised the plaintiff that they would be able to do so, and undertook, promised and agreed, to handle said matter in a careful, skillful and diligent manner as her attorneys and then and there became by their mutual consent associated together for that purpose.

"That at the time of the employment of said defendants aforesaid she laid all the facts hereinbefore set out, before them, and had ample evidence to prove the same and to entitle her to a rescission of said exchange of properties and to a return of her said property to her and it became and was the duty of the defendants as her attorneys to interpose an answer and cross-complaint to the said cross-complaint of said Lohmire setting forth said facts so entitling her to such rescission and praying for a rescission thereof, and to present the proof thereof upon the trial of said cause and to demand a decree of the Court rescinding said exchange of properties and returning her property or its value to her and that the said defendants prepared and filed an answer and cross-complaint for plaintiff to said cross-complaint of said Lohmire, which they advised her was sufficient for that purpose and the proper answer and cross-complaint to be filed thereto and that said Lohmire filed a reply thereto.

"That said answer and cross-complaint so filed by defendants for plaintiff as she has since learned, was defective and insufficient in that it prayed for damages instead of praying for a rescission of said exchange of properties, which defendants well knew was what she desired and was entitled to, but that said defect could have been cured by amendment so as to entitle her to said relief if defendants had appeared for plaintiff and represented her at the trial of said cause as they had agreed to do.

"That said cause was regularly set for trial in said Circuit Court on the 15th day of September, 1924, but that said defendants failed and neglected to notify the plaintiff of said trial or the date set therefor and that she had no notice or knowledge thereof and they failed and neglected to appear for or represent her at said trial, or to present any evidence in her behalf or to give said matter any attention whatever but allowed said cause as to her to go against her by defanlt, and a decree to be rendered against her foreclosing said mortgages, and decreeing the sale of said real property for the satisfaction thereof, and costs and attorneys' fees, and disallowing and denying plaintiffs said answer and cross-complaint, whereby her said property was wholly lost to her.

"That by reason of the unskillfulness, negligence and carelessness of said defendants in the premises plaintiff is and has been damaged in the sum of $10,500.00."

The complaint was demurred to separately by the defendants. The demurrer of defendant Hare was sustained. About six months later the judge presiding reconsidered his action in sustaining the demurrer, vacated that order, and then overruled said demurrer. Another judge in the same court overruled the separate demurrers filed by the defendants Carter and Korell. When the case was called for trial before another judge in the same court, defendants moved for judgment on the pleadings, which motion was allowed after discussion and due consideration. Judgment was entered in favor of the defendants, dismissing plaintiff's complaint. The pleadings are very long, and from the view we take of the case it is not necessary to set them out. If the complaint states facts sufficient to constitute an action, the judgment must be reversed. There are issues of fact joined by the complaint, separate answers, and replies thereto. On the other hand, if the complaint does not state facts sufficient to constitute a cause of action, the judgment must be affirmed.

One rescinding exchange for fraud must offer return of consideration.

Darrell W. Milton, of Portland, for appellant.

A. E Clark, W. Lair Thompson, and MacCormac Snow, all of...