Post v. Liberty

• Decision Date: 05 February 1912
• Citation: 45 Mont. 1
• Parties: POST et al. v. LIBERTY.
• Court: Montana Supreme Court

45 Mont. 1

POST et al.

v.LIBERTY.

Supreme Court of Montana.

Feb. 5, 1912.

Appeal from District Court, Fergus County; E. K. Cheadle, Judge.

Action by Chester Post and another against Joseph Liberty. From a judgment for defendant and an order overruling their motion for new trial, plaintiffs appeal. Reversed and remanded, with directions to enter decree for plaintiffs.

John A. Coleman and C. A. Linn, for appellants. O. W. Belden and Ayers & Marshall, for respondent.

HOLLOWAY, J.

This action was brought to rescind a contract for the sale of real estate and personal property, to recover a portion of the purchase price, and for damages. The complaint alleges that on July 27, 1910, the parties hereto entered into a written contract by the terms of which plaintiffs agreed to purchase, and defendant to sell, 780 acres of land in Fergus county, described by government subdivisions, together with certain personal property, for the sum of $20,320, payable $2,000 upon the execution of the contract, and the balance in installments covering a period of about eight years. It is alleged that, prior to the execution of the contract, defendant took the plaintiffs to the land, pointed out to them a certain road, and represented that it was the eastern boundary line of the premises he was seeking to sell, and that all of the land to be sold was situated west of that road, except about 20 acres; that defendant further represented that 600 acres of the land were in cultivation; and that these representations were made for the purpose of inducing the plaintiffs to purchase the property. It is also alleged that plaintiffs did not know the location of the boundary line, but believed the representations made by defendant to be true, relied upon them, and by reason thereof executed the contract and paid the $2,000 as a part of the purchase price. It is further alleged that the land pointed out to them by the defendant as the land he was offering for sale was valuable chiefly for agricultural purposes; whereas the land situated immediately east of the road was rough, rocky, hilly, and of little or no value. It is then alleged that the representations made by defendant were false, and were made for the purpose of deceiving and defrauding the plaintiffs; that in truth and fact the road was not on or near the eastern boundary line of the land described in the contract; that more than 200 acres lay east of the road, and was rough, rocky, and valueless; and that only about 300 acres of the lands actually purchased were in cultivation. Plaintiffs then allege that they went into possession of the property and expended $1,436 in time and money on improvements, in caring for the crops, etc.; that they soon thereafter discovered that the representations made by defendant were false, and immediately notified defendant that they elected to rescind the contract, and demanded the return of the $2,000 which had been paid on account of the purchase price, and the further payment of the damages they had sustained, and that these demands were refused.

Defendant admits the execution of the contract, the receipt of $2,000, that he showed the plaintiffs over the property before the contract was executed, that plaintiffs took possession of the property under the contract and devoted three months of their time to it, that they made the demand upon him which is pleaded in their complaint, that he refused to comply therewith, and then denies every other allegation of the complaint. The cause was tried to the court, sitting with a jury. Certain special interrogatories were submitted to and answered by the jury. Three of these special findings were adopted as the findings of the court, and a judgment was rendered and entered, denying the plaintiffs any relief. Exceptions were taken to the findings made, and from the judgment and an order overruling their motion for a new trial the plaintiffs appealed.

Each of the plaintiffs testified unequivocally to the representations made by defendant as alleged in their complaint. They also called one J. L. McCormick, who corroboratedthem, in a measure at least. There was also introduced in evidence the written notice given by plaintiffs to the defendant of their election to rescind the contract, and the answer thereto from the defendant. So much of the letter written by plaintiffs to the defendant as is pertinent to the inquiry here is as follows:

“Lewistown, Mont., Nov. 2, 1910.

“Notice to Joseph Liberty, Geyser, Mont.- Dear Sir: We have caused to be surveyed the lands which we agreed to buy from you according to that certain written agreement of date July 27, 1910, and have discovered that approximately (200) two hundred acres are located east of the public road which traverses said land, and not on the west side of it, as you represented to us. On account of said fraudulent representations, we hereby rescind said contract. ***”

And such portions of defendant's answer thereto as reflect upon the inquiry, are as follows:

“Geyser, Mont., November 7, 1910.

“Post Bros., Lewistown, Mont.-Gentlemen: I am in receipt of registered notice dated November 2nd in which you state that I misrepresented the lands on the Cameron ranch; I am sorry you see it that way. There was no misrepresentation on my part whatsoever. I showed you the north line, the west line and the east line of this property and I told you that the road along the bluff was the line, or about that. *** I told you as near as possible where the land was on this entire tract and if there is, according to your statement, 200 acres across on the south side then there are 200 acres of land more than I thought I had or that I was selling.”

It will be observed that plaintiffs refer to the rough land as lying east of the road, while defendant refers to it as lying south. The road runs southwesterly, and the land is properly described as south or east of the road. There is not any question but that both parties refer to the same land. The record also identifies the road referred to in defendant's letter as “along the bluff” as the same road which plaintiffs contend was pointed out by defendant as the east boundary line of the land.

The plaintiff Menus Post further testified that in November, 1910, he met the defendant in the office of Mr. Coleman in Lewistown, and had a conversation with him, in which the defendant made substantially the same statements as are contained in the letter above, and that during the course of the conversation defendant drew a map or plat of the land to show its location; but on the plat thus made defendant located the land a quarter of a mile, or, to use the witness' own language, “one eighty,” west of the actual location as given in the contract. This conversation is not denied, and there is not a word in explanation of the statements in defendant's letter.

Defendant in his oral examination denied that he mentioned the lines to Menus Post; admitted that he showed the east line to the plaintiff Chester Post, but denied that he ever stated that the land was all west of the road. However, he did testify: “I always did think that the [east] line was just about the middle of the creek there.” The evidence shows that the road runs along the creek. It is somewhat difficult to understand a portion of the evidence. The witnesses made use of a map and testified with reference to it; but in pointing out different places the record merely contains the word “indicating,” without anything to fix the point definitely. Assuming, however, the position most favorable to defendant, that his evidence tends to show that he pointed out the road as on the east line only at the extreme northeastern portion of the land, and that he actually showed to Chester Post the correct line along the east side of the land in section 14 and the corner post at the extreme southeasterly portion of the land in section 27, we are then confronted with this situation: The plaintiffs testify positively that defendant pointed out to them the road as the east line of the land he was seeking to sell, and asserted that the land all lay west of the road, except a small portion, about 20 acres, presumably in section 27. The witness McCormick, apparently disinterested, corroborated plaintiffs to some extent, at least. But of much greater consequence is the letter written by defendant and quoted above. If the language of that letter, when read in connection with the notice to which it is an answer, is susceptible of any meaning at all, it is that the defendant pointed out the road as substantially the east line of the property he was seeking to sell; that he was under the impression when he wrote the letter that there was not any portion of the land lying east of the road, and if there was in fact any substantial part of it to the east of the road he had been mistaken in the location of the east line. The language of the letter, “and if there is, according to your statement, 200 acres across on the south side then there are 200 acres of land more than I thought I had or that I was selling,” can only be reconciled with the theory of plaintiffs that the defendant was selling land situated west of the road. Furthermore, defendant does not deny or offer any explanation of the testimony of Menus Post that in November, in Mr. Coleman's office, he (defendant) repeated, in substance, the statements contained in the letter, and then and there drew a plat of the land, locating it a quarter of a mile west of where it actually lies, thereby showing that he either did not known the location of the east boundary line, was honestly mistaken as to its location, or was willfully misrepresenting it. In view of the proof thus made by plaintiffs, and the fact that defendant's statements stand alone, unsupported by any circumstance or other testimony, to say that plaintiffs have not sustained their contention as to the representations made with reference to the boundary line by a fair...