Parish v. Page
| Decision Date | 29 November 1930 |
| Docket Number | 5518 |
| Parties | W. W. PARISH, Appellant, v. ALFRED PAGE and SARAH PAGE, Respondents |
| Court | Idaho Supreme Court |
FRAUD-FRAUDULENT REPRESENTATIONS-EVIDENCE-STATUTE OF LIMITATIONS-RELEASE SCOPE OF-SUBSEQUENT DEMANDS.
1. Map not exhibited to purchaser before execution of contract, and not showing tillable land, held not continuing representation regarding quantity of tillable land.
2. Map showing land conveyed but not exhibited until after execution of contract, though ambiguous, held sufficient to put purchaser upon inquiry regarding quantity of land conveyed.
3. Recital in lease of premises conveyed fixing acreage, where lease was never considered binding, held not representation of quantity of land conveyed.
4. Vendor's sale of 273.85 shares of water rights as going with land held not representation that acreage conveyed equaled number of shares of water stock.
5. General release ordinarily includes all claims and demands then due and within contemplation of parties.
6. Generally, demand of which parties were ignorant when release was given is not embraced within release.
7. Demand coming within fair terms of release is discharged whether within contemplation of parties or not, in absence of fraud.
8. General release provision in contract between vendor and purchaser, after purchaser's default, held to release purchaser's claim for damages for false representations concerning quantity of land.
9. Knowledge of facts which would put reasonably prudent person on inquiry is equivalent to knowledge of fraud, and will start running of statute of limitations (C. S., sec. 6611 subd. 4).
APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.
Judgment affirmed. Costs to respondents.
Action for damages. Judgment for defendants. Affirmed.
E. M. Wolfe and Frank L. Stephan, for Appellant.
Fraud may be predicated upon the exhibition of a map purporting to describe acreage of a tract of land, which map is false, erroneous and deceiving. (27 R. C. L. 364, sec. 64; Carlyle v. Sloan, 44 Ore. 357, 75 P. 217; McCall v. Davis, 56 Pa. 431, 94 Am. Dec. 92; State v. Gaillard, 2 Bay (S. C.), 11, 1 Am. Dec. 628.)
An aggrieved party having been induced to purchase land by false representations, whether wilfully, fraudulently or innocently made, is entitled to recover damages resulting from such false representations. (25 Cal. Jur. 550, sec. 72; 12 Cal. Jur. 746; Taylor v. Lytle, 26 Idaho 97, 141 P. 92; Lies v. Mulhall, 31 Idaho 205, 169 P. 1165; Turner Agency v. Pemberton, 38 Idaho 235, 221 P. 133; Hanson v. Tompkins, 2 Wash. 508, 27 P. 73; Eichelberger v. Mills Land & Water Co., 9 Cal.App. 628, 100 P. 117.)
The statute of limitations does not begin to run in cases of this nature until appellant discovers or as a reasonable person in the exercise of ordinary prudence should have discovered the fraud, nor will delay bar appellant, under the rule of laches, when such delay in discovering the fraud has been brought about by acts and representations of respondents. (C. S., sec. 6611, subd. (4); Ryan v. Old Veteran Mining Co., 37 Idaho 625, 218 P. 381; Williams v. Shrope, 30 Idaho 746, 168 P. 162; Eichelberger v. Mills Land & Water Co., 9 Cal.App. 628, 100 P. 117; 21 C. J. 243, 244-246, 247, 248 and 249; Krohn v. Williamson, 62 F. 869; Arkins v. Arkins, 20 Colo. App. 123, 77 P. 256; Salsbury v. Ware, 183 Ill. 505, 56 N.E. 149; Smith v. Faris-Kesl Const. Co., Ltd., etc., 27 Idaho 407, 150 P. 25.)
A release covers only such claims as are within the contemplation of the parties at the time of executing the same, and a demand of which the party was ignorant when the release was given is not generally embraced therein. (34 Cyc. 1090-1092; Church Cooperage Co. v. Pinkney, 163 F. 653, affirmed in 170 F. 266, 95 C. C. A. 462; Seaver v. Snider, 21 Colo. App. 431, 122 P. 402; Strand v. Griffith, 97 F. 854, 38 C. C. A. 444; West v. Hoffman, 139 Wash. 13, 245 P. 419.)
Walters, Parry & Thoman and J. R. Keenan, for Respondents.
The map, Exhibit "G," being delivered by respondent Page to appellant without personal representation of its correctness, does not constitute a fraudulent representation. (Connell v. El Paso Gold Min. & Mill. Co., 33 Colo. 30, 78 P. 677; Fidelity & Deposit Co. v. Drovers' State Bank, 15 F.2d 306.)
The court found upon substantial evidence that appellant in 1918 or 1919 had information that if pursued would have led to the discovery of the alleged fraud; therefore the present action is barred by C. S., sec. 6611. (Williams v. Shrope, 30 Idaho 746, 168 P. 162; Stout v. Cunningham, 33 Idaho 464, 196 P. 208; Ryan v. Old Veteran Min. Co., 37 Idaho 625, 218 P. 381.)
Appellant executed a general release to respondents for all claims connected with his purchase of the land; therefore he will be held to have released his claim of damages for fraud inducing the purchase. (Willett v. Herrick, 258 Mass. 585, 155 N.E. 589; Houston v. Trower, 297 F. 558; Shannon v. Prall, 115 Wash. 106, 196 P. 635.)
Respondents are husband and wife and at one time owned all of section 36, township 9 south, of range 16, E. B. M., in Twin Falls county, which the evidence shows was a "short" section containing an area of 624.70 acres, 258.66 acres of which lie west of the center line of Rock Creek. Under date of November 20, 1917, they entered into a written agreement with appellant whereby they agreed to sell him "all of the land lying and being west of Rock Creek in Section Thirty-six (36), Township Nine (9) South, Range Sixteen (16) E. B. M., that lies west of the meanders of the creek and is marked by the center of the bed of the said creek, containing 250 acres more or less," for the sum of $ 50,000, payable in installments.
Appellant brought this action in damages for fraud, alleging in substance that at the date of said agreement respondent falsely represented that there were 273.85 acres in said tract of land, with 273.85 shares of water stock in the Twin Falls Canal Company appurtenant thereto; and that 250 acres of said land were tillable and suitable for cultivation, which were then being, and for a number of years prior thereto had been, cultivated. It was also alleged that respondents exhibited to appellant a map showing the exterior boundaries of said land and the several fields into which it was divided, with the acreages thereof; that said lands were sold and purchased for the sum of $ 200 per acre for 250 acres, said acreage being represented as "tillable and suitable for cultivation"; that there were but 211.4 acres of tillable land in said tract, which was not discovered by appellant until August 25, 1926, when suit was brought against him by the Burnett Brothers, to whom appellant sold the land; that the representations of respondents and the correctness of said map were relied upon by appellant, who demanded judgment for the amounts, principal and interest, paid by him because of such shortage upon said contract.
The answer denied all the material allegations of the third amended complaint, both as to the amount of land and the tillable area thereof, the falsity of the map, denying it was ever exhibited to appellant, and alleged that the land was sold for the flat price of $ 50,000, regardless of the number of acres contained in the tract. As separate affirmative defenses, respondents plead (a) a release and surrender by appellant of all rights under said contract dated November 20, 1917, by virtue of a written agreement dated April 1, 1924, entered into at a time when appellant was in default in his payments under the first-mentioned agreement, and a supplementary agreement entered into by the parties about March 2, 1923, changing the amounts of the installment payments falling due under the original agreement, and by virtue of an express release contained in a written agreement dated October 10, 1925; (b) estoppel by reason of long delay in commencing the present action; and (c) that appellant's cause of action is barred by the statute of limitations (C. S., sec. 6611, subd. 4).
The cause was tried to the court without a jury, all of the issues being found in favor of defendants. Plaintiff appeals from the judgment.
The evidence is in direct conflict as to any false representations as to the quantity of land embraced in the tract sold, or the quantity of tillable land. Appellant concedes this, but argues that aside from the oral evidence the written documents in evidence conclusively show that said false representations were so made. With appellant's theory we cannot agree. The map showing parcels of land aggregating 250 acres on the west side of section 36, township 9 south, range 16 east, as found by the court upon ample evidence, was not exhibited to appellant until after the contract was entered into. The map is silent as to whether the parcels are tillable land, or otherwise, and does not tend to support appellant's theory that it falsely represented the entire tillable area as 250 acres, and so does not constitute a continuing representation that such was the case. The map shows the territory west of Rock Creek blocked off into fields whose easterly boundaries apparently terminate in a traverse line along the rimrock adjacent to the bank of said creek. The surveyor, in lettering in the areas, placed his figures wholly within the lines of each parcel. It is contended that the map thereby indicated the traverse line as the eastern boundary of the several parcels, and not the center of Rock Creek, the actual boundary line. There is evidence to the effect that engineers would so read the map.
The fact is that the total of the...
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