Moore v. Howe
| Decision Date | 23 October 1901 |
| Citation | 87 N.W. 750,115 Iowa 62 |
| Parties | S. R. MOORE v. D. D. HOWE and L. CARTER, Appellant |
| Court | Iowa Supreme Court |
Appeal from Cerro Gordo District Court.--HON. C. H. KELLY, Judge.
THE plaintiff exchanged 210 acres of land in Moody county, S. D for a stock of goods at Clear Lake, Iowa. The farm was incumbered, and for computed difference in value he executed his note to defendant Howe for $ 1,452, payable in one year and secured it by chattel mortgage on the stock. January 11 1897, this mortgage was foreclosed, and the stock bid in by Howe for precisely enough to satisfy the debt. This action was begun April 22, 1897. In it the defendants are alleged to have conspired to obtain, and in pursuance thereof have obtained, plaintiff's land without paying for it; and judgment is prayed for its value above incumbrance, or $ 3,850. Issue was joined, and the cause tried to a jury. Verdict was returned for plaintiff, and judgment entered thereon. The defendants appeal.
Reversed.
Cliggitt & Rule and Stanbery & Clark for appellants.
Blythe, Markely & Smith and D. W. Hurn for appellee.
OPINION
That the plaintiff was overmatched in exchanging his farm of 210 acres in Moody county, S. D., for the stock of goods at Clear Lake, Iowa, this record furnishes convincing proof. But such a result is likely to, and often does, occur in trades honestly conducted; and certainly this record contains no evidence of fraud of which he may now complain. He was not wholly unsophisticated, having had 2 1/2 years' experience in the operation of a general store, 1 year in that of a drug store, and for a short time dealt in agricultural implements though engaged as a tiller of the land for 10 years previous to the examination of the stock of goods, evidently put together and arranged for the purposes of exchange. If Carter, preliminary to the transaction, held himself out as owner, Moore learned that the stock belonged to Howe before the contract was signed. If Carter represented the goods to be good and salable, Moore had knowledge to the contrary before accepting them. Whether the cloth and velvet buttons, the beaded trimmings, the soiled ladies hats, and the cloaks, all out of style, or some of these were introduced in the stock after the contract was entered into or were overlooked by Moore in his examination, is now immaterial; for he, with precisely the knowledge he had at the time of the trial, and knowing that they were included in the invoice, demanded a discount because of their condition, and obtained it. Before the inventory was completed he concluded not to take stock, and left for his hotel. Doubtless this avoided friction in the invoicing of the fixtures, as Carter completed it alone, and according to his own notions as to values, and what should be treated as fixtures. But this, also, was with full knowledge accepted. It is claimed that plaintiff did not observe the holes gnawed in some of the cloaks by mice, nor the frayed and faded condition of the dress goods, until after he had taken possession. But these were open to his inspection, and as accessible to him as any one else. What he actually saw put him on inquiry, and, if he did not ascertain their condition, it was owing to his own neglect. When the means of knowledge are at hand, and equally available to both parties, and the subject is alike open to their inspection, if the purchaser does not avail himself of these means he will not be heard to say that he has been deceived by the vendor's misrepresentations. Slaughter v. Gerson, 80 U.S. 379 (20 L.Ed. 627); Bell v. Byerson, 11 Iowa 233; Poland v. Brownell, 131 Mass. 138 (41 Am. Rep. 215); Ellis v. Andrews, 56 N.Y. 83 (15 Am. Rep. 379). True, Carter bragged on the goods; but no more than was permissible, in view of the fact that this did not deter plaintiff from examining them. Indeed, it appears that the bragging and examination went on at precisely the same time, and that plaintiff admits that before the completion of the invoice he actually noticed the holes in some of the cloaks. But there is another circumstance in the way of a rescission by plaintiff: Notwithstanding the discovery of defects alluded to, the plaintiff continued to treat the stock as his own and sell therefrom up to January 11, 1896,--nearly four months after the trade. Upon the discovery of the imposition, if any, practiced upon him, he should have made his stand. A party to an agreement induced by fraud or deceit is held to the duty of electing either to execute or rescind the contract at the time of discovering the wrong, or within a reasonable time thereafter. Rawson v. Harger, 48 Iowa 269. Sometimes this question as to what is a reasonable time is for the jury, but we have no hesitancy in saying, as a matter of law, that the retention of a retail stock of goods, and sale therefrom in the ordinary course of business, and appropriating the proceeds thereof, for nearly four months after acquiring knowledge of the alleged fraud, will preclude a subsequent rescission of the contract. Such treatment of the property is an unequivocal election to accept the goods and carry out the contract. Taking any benefit or changing the condition of the property bought after learning of the fraud has been adjudged a waiver of the right to rescind. Cobb v. Hatfield, 46 N.Y. 533; Negley v. Lindsay, 67 Pa. 217 (5 Am. Rep....
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