Nobach v. Scott
| Decision Date | 11 November 1911 |
| Citation | 20 Idaho 558,119 P. 295 |
| Parties | H. P. NOBACH, Appellant, v. J. T. SCOTT, Respondent |
| Court | Idaho Supreme Court |
CONTRACT - RESCINDING OF - PLEADINGS - TRANSCRIPT - MOTION TO STRIKE-MOTION FOR NEW TRIAL-NOT SIGNED BY ATTORNEY-OVERSIGHT-ACTED ON BY COURT-UNDERTAKING ON APPEAL-TWO APPEALS-AMOUNT OF UNDERTAKING-MOTION TO STRIKE OUT PARTS OF ANSWER-NEGATIVE PREGNANT-CONSTRUCTION OF PLEADINGS-SUFFICIENT DENIALS-NONSUIT-PRIMA FACIE CASE-SUFFICIENCY OF EVIDENCE.
(Syllabus by the court.)
1. Under the provisions of sec. 4162, Rev. Codes, the pleadings in an action are the complaint, the demurrer to the complaint, the answer and the demurrer to the answer.
2. Under the provisions of sec. 4198, Rev. Codes, pleadings must be signed by a resident attorney.
3. A motion is defined by sec. 4880, Rev. Codes, as an "application for an order," and is not required in terms to be signed, but it is the proper practice for the counsel or the party to sign it.
4. Where a motion for a new trial has been made in writing and served upon opposing counsel and through neglect or oversight has not been signed, and the court acts upon it as though it had been signed, such motion will not be stricken from the transcript on appeal for that reason.
5. Under the provisions of sec. 4231, Rev. Codes, the court must in every stage of an action disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties.
6. A party to an action will not be permitted to stand by and neglect or refuse to raise seasonable objections to mere defects in pleadings or proceedings and thereafter take advantage of such defects on appeal.
7. Under the provisions of sec. 4809, Rev. Codes, when more than one appeal in the same action is taken at the same time, but one undertaking of $300 for damages and costs is required to be filed, and such undertaking should refer to both appeals.
8. Held, that the denials and averments contained in the answer are sufficient to put in issue the principal allegations of the complaint.
9. A negative pregnant in a pleading is a negative implying also an affirmative; it is such a form of negative expression as may imply or carry with it an affirmative.
10. Under the provisions of sec. 4161, Rev. Codes, the forms of pleadings in civil actions and the rules by which the sufficiency thereof are to be determined are those prescribed by the codes, and under the provisions of sec. 4207, Rev Codes, all allegations or denials in a pleading must be liberally construed with a view to substantial justice between the parties.
11. The purpose and object of our code of procedure is to have actions tried upon their merits and not to have them dismissed on mere technicalities.
12. Certain denials in the answer held sufficient.
13. Where an answer contains averments and allegations of pro bative facts as a separate defense, which might be proven under general or specific denials, such averments ought to be stricken out on motion.
14. All competent evidence tending to prove the material allegations of the complaint or denials of the answer ought to be received when offered.
15. In an action for the purpose of rescinding a contract for the sale of certain real estate, whereby certain shares of stock in a corporation were a part of the consideration, and it is sought to rescind the contract on the ground that the corporation was insolvent and that such shares of stock were valueless, it is incumbent on the plaintiff to prove that the corporation was insolvent or in a failing condition at the time or on the date that the trade was made, and it is not sufficient proof of that fact simply to show that such corporation made an assignment for the benefit of its creditors a little over six months after the date of the contract sought to be rescinded.
16. Under the facts of this case, held, that the appellant was in as favorable a position to know and ascertain the condition of said corporation and the value of its capital stock and assets as was the respondent, and as he neglected and failed to do so and failed to show that said corporation was insolvent or in a failing condition at the date of the contract referred to, the judgment of nonsuit at the close of his testimony will not be disturbed.
APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robt. N. Dunn, Judge.
Action to rescind a contract and at the close of plaintiff's evidence a motion for nonsuit was sustained and judgment of dismissal entered. Affirmed.
Judgment affirmed, with costs in favor of the respondent.
Reed & Boughton, for Appellant.
A negative pregnant in pleading is not a denial of the fact alleged, and therefore should be stricken out on motion.
A party is not bound to investigate for himself, and has a right to rely solely on the statements made by the vendor. (Gerner v. Mosher, 58 Neb. 135, 78 N.W. 384, 46 L. R. A. 244; Watson v. Molden, 10 Idaho 570, 79 P. 503; Bank of Woodland v. Hiatt, 58 Cal. 234; Wooddy v. Benton Water Co., 54 Wash. 124, 132 Am. St. 1102, 102 P. 1054.)
As a matter of fact, in this case plaintiff had no means of learning the actual value of the stock in question. (Best v. Offield, 59 Wash. 466, 110 P. 17; Dow v. Swain, 125 Cal. 674, 58 P. 271.)
If there is a single material misrepresentation made by the defendant or his agent in this case and plaintiff relied on such statement, he is entitled to a rescission of the contract.
Even misrepresentations as to past profits realized from a business may amount to a fraud. (Del Vecchio v. Savelli, 10 Cal.App. 79, 101 P. 32.)
McFarland & McFarland, for Respondent.
A careful examination of the answer will certainly convince anyone familiar with the rules of pleading that it contains no negatives pregnant. (31 Cyc. 203-205; O'Brien v. Seattle Ice Co., 43 Wash. 217, 86 P. 399; Rev. Codes, Idaho, 4207.)
In their brief counsel for appellant say: "Every pleading is construed most strongly against the pleader." This is not true under our practice. (Cantwell v. McPherson, 3 Idaho 721, 34 P. 1095; Stuart v. Noble Ditch Co., 9 Idaho 765, 76 P. 255; White v. Johnson, 10 Idaho 438, 79 P. 455.)
The proof offered is not evidence that the stock was worthless or that the Winn-Barr-Chainey Co. was bankrupt or insolvent on December 24, 1909, the date when the trade was made between appellant and respondent. (1 Sedgwick on Damages, 8th ed., par. 250.)
It cannot be contended that respondent made any material representation before the consummation of the trade, because he had no conversation with appellant and did not see him until the trade was consummated and the papers all signed. Nor does the evidence show that Nobach acted in reliance upon any representation or statement made to him by Collins. (Nounnan v. Sutter County Land Co., 81 Cal. 1, 22 P. 515, 6 L. R. A. 219; Choate v. Hyde, 129 Cal. 580, 62 P. 118; Brown v. Bledsoe, 1 Idaho 746; 20 Cyc. 49; Mentzer v. Sargeant, 115 Iowa 527, 88 N.W. 1068; Warfield v. Clark, 118 Iowa 69, 91 N.W. 833; 9 Cyc. 427.)
Nobach had the same means of ascertaining the financial condition and standing of the Winn-Barr-Chainey Co. and the value of its stock that Collins and Scott had, and could have availed himself, if he did not do so, of the opportunity to acquire such knowledge, and he is presumed by law to have had such knowledge. (9 Cyc. 428; Lee v. McClelland, 120 Cal. 147, 52 P. 300.)
This action was brought for the purpose of having rescinded a certain contract for the sale of certain land known as "Kootenai Addition" to the city of Coeur d'Alene. On the trial, after the plaintiff had put in certain evidence and the court had refused to receive other offered evidence, the plaintiff rested, and counsel for respondent interposed a motion for a nonsuit, the main ground of which was that the evidence was not sufficient to sustain the principal allegations of the complaint. Said motion was sustained by the court and judgment of dismissal entered. A motion for a new trial was denied and this appeal is from that order and from the judgment.
Counsel for respondent has filed two motions; one to strike out part of the transcript and another to dismiss this appeal. The first motion is based on the ground that the motion for a new trial is not signed by either the party or his attorneys. Said motion was served on the attorneys and filed in the case and was acted upon by the court as though it had been signed. Under the provisions of sec. 4162, Rev. Codes, the only pleadings in an action are the complaint, the demurrer to the complaint, the answer and demurrer to the answer. Under the provisions of our statute a cross-complaint is classed with the complaint and a demurrer to that, of course, may be made. Under the provisions of sec. 4198, the pleadings are required to be signed by a resident attorney, and sec. 4880, Rev Codes, defines a "motion" as an application for an order and is not...
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