Nisson v. Tillman
| Decision Date | 26 March 1958 |
| Citation | 323 P.2d 329,213 Or. 133 |
| Parties | Nellie Marie NISSON, Respondent, v. C. E. TILLMAN and Frances Tillman, Appellants. |
| Court | Oregon Supreme Court |
Robert E. Jones, Portland, argued the cause for appellants. On the brief were Windsor, Jones & Briggs, Portland.
Albert T. Kemmer, Portland, argued the cause and filed a brief for respondent.
Before PERRY, C. J., and LUSK, WARNER and KESTER, * JJ.
The plaintiff brought this action, setting forth the following allegations in her complaint:
'I.
'That at all times hereinafter mentioned the Defendants were, and are now, husband and wife.
'II.
'That on or about the 25th day of January 1954, Plaintiff agreed to purchase from the Defendants, and the Defendants agreed to sell to the Plaintiff, that certain restaurant in the City of Beaverton, County of Washington, State of Oregon, commonly known as the Tip Top Coffee Shop, together with the equipment, good-will and assumed name thereof.
'III.
'That Plaintiff made the down-payment as required by the Contract of Sale, installed new equipment in the restaurant, employed workmen to perform labor in cleaning, painting and placing the said restaurant in good order and repair for the transaction of a restaurant business and thereupon occupied said premises and restaurant for the transaction of the restaurant business.
'IV.
'That prior to entering into said agreement of purchase of the said restaurant and equipment, as hereinbefore alleged, the Defendants represented to Plaintiff that the plumbing in said restaurant was in good order and repair; that the said restaurant had an A-1 rating with the Health Department of Washington County, Oregon, and was authorized to operate under the assumed name and style of Tip Top Cafe.
'V.
'That said representations were false in that the plumbing in the said restaurant was in a defective condition and was not in accordance with the Code of the State of Oregon Health Department; the restaurant had no A-1 rating, but was, in fact, not passed by the Health Department for such rating; that the Defendants had never filed an assumed name certificate with the County Clerk of Washington County authorizing the conduct of the business under the assumed name of Tip Top Cafe.
'VI.
'That said representations were either known to have been false when made, or were made so recklessly and without regard to the truth or falsity thereof as to amount to fraud; they were made to defraud and with the intent that Plaintiff act thereon and the Plaintiff relied thereon and made the payment due under the Contract of Sale and expended monies with reference to the repair and improvement of the restaurant and moved herself and her family to the City of Beaverton and expended monies with reference to the conduct of the business and in her relocation in Beaverton.
'VII.
'That, upon discovery of said misrepresentations, Plaintiff rescinded the transaction and gave notice thereof to the Defendants, and each of them, and demanded return of the sum of $2593.95 paid in connection with the purchase price, rehabilitation and repair of the restaurant and the further sum of $1042.42, other expenses and general damages suffered by the Plaintiff; that the same has not been paid, nor any part thereof.
'Wherefore, Plaintiff prays judgment against the Defendants, and each of them, for the sum of $2165.94 special damages and the further sum of $912.50 general damages, together with interest thereon at the rate of 6% per annum from May 1, 1954, together with her costs and disbursements incurred herein.'
The trial of the cause resulted in a judgment for plaintiff and against the defendants in the sum of $1,250. From this adverse judgment the defendants have appealed.
On appeal, the defendants for the first time contend the complaint does not state a cause of action.
In Musgrave v. Lucas, 193 Or. 401, 410, 238 P.2d 780, 784, we said:
Defendants, therefore, conclude that, since the complaint fails to allege the plaintiff was ignorant of the falsity of the representations, an element of a valid cause of action is missing.
It has been long established in this state that a complaint alleging fraud is sufficient if it alleges facts showing that (1) a material representation was made to the plaintiff and it was false; (2) the defendant making the...
To continue reading
Request your trial
-
Bixby v. KBR, Inc.
...Prosser, Law of Torts § 106 at 695 (4th ed. 1971). Plaintiff must also prove that the representations were false. Nisson v. Tillman, 213 Or. 133, 137–38, 323 P.2d 329 (1958). However, representations that are “literally true” may be actionable if the representation “creates a false impressi......
-
Bridgmon v. Walker
...all circumstances find relief only in a court of equity, but he may seek this restoration as damages in an action at law. Nisson v. Tillman, 213 Or. 133, 323 P.2d 329; Kruse v. Bush, 85 Or. 394, 167 P. Therefore, it is the fraud in the securing of the contract that gives plaintiffs any righ......
-
McGill v. Huling Buick Co.
...facts, it was not necessary to allege the legal conclusion that such a representation was 'material.' Nisson v. Tillman et ux., 213 Or. 133, at pp. 137--138, 323 P.2d 329, at p. 331 (1958), cited by defendant, is not to the contrary, but holds that 'a complaint * * * is sufficient if it all......
-
Federici v. Lehman
...affirm the contract and sue for the damages suffered by reason of the fraud. Kruse v. Bush, 85 Or. 394, 167 P. 308; Nisson v. Tillman et ux., 213 Or. 133, 323 P.2d 329; Bridgmon v. Welker, 218 Or. 130, 344 P.2d If a defrauded party elects to rescind he may bring an action at law if full rel......