Saunders v. Farmers & Merchants Nat. Bank of Milbank
| Decision Date | 01 May 1933 |
| Docket Number | 7198. |
| Citation | 248 N.W. 250,61 S.D. 261 |
| Parties | SAUNDERS v. FARMERS & MERCHANTS NAT. BANK OF MILBANK et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Grant County; W. W. Knight, Judge.
Action by Jennie Saunders against the Farmers & Merchants National Bank of Milbank, and others. From the judgment and the order denying her motion for new trial, plaintiff appeals.
Affirmed.
Perry F. Loucks, of Watertown, and Murphy, Johanson & Nelson, of Wheaton, Minn., for appellant.
Robert D. Jones, of Milbank, and McFarland & Kremer, of Watertown for respondents.
This case has heretofore been considered by this court, at which time an order overruling a demurrer to the complaint was sustained. See same title, 55 S.D. 449, 226 N.W. 583. We refer to the former opinion for a statement of the facts alleged in the complaint. The case was tried to a jury in Grant county, and occupied the time of the court and jury for more than one month. The record and briefs are voluminous. As disclosed by the former opinion, the issue involved was that of fraud, and much of the record is taken up with evidence on this issue, which of necessity cannot be confined within any exact limits, and which tends to make a long and protracted trial and record. We will not attempt any statement of facts other than those that appear in the former opinion, except in the discussion of the different alleged errors. The jury returned a verdict in favor of the defendants. This is an appeal from the judgment entered and the order denying a motion for a new trial.
The court submitted to the jury the question of fraud under comprehensive instructions. The defendant excepted to the court withdrawing from the consideration of the jury the question of rescission of the contract, which it was alleged was induced by fraud, and assigns error on account of the court's action in this regard. This matter will be the first subject of our consideration.
Section 906, Rev. Code 1919, provides as follows:
The trial court held that the evidence was not sufficient to constitute a rescission, under the above quoted section of our Code. The material evidence, as given by the plaintiff disclosed the following facts. The appellant claimed that prior to February, 1927, she had been induced by the defendants to turn over a part of the insurance money she had received on account of the death of her husband, for certain notes and mortgages held by the defendant bank of which her husband was president at the time of his death. She then claims that in February, 1927, and some time prior thereto, the defendants, Saunders, Goodman, Blomquist, and Benedict, who had been closely associated with her and her husband, in a social and business way, prior to her husband's death, and who were her advisors following the husband's death, fraudulently induced her to turn over the notes and mortgages she had received in the prior transaction for certain stocks, as follows: 108 shares of Farmers' & Merchants' National Bank; 25 shares of G. L. Wood Farm & Mortgage Company; 20 shares of Corona State Bank. In addition to the above stock, she received a note of $5,000, which it is undisputed was signed by her deceased husband, and which it is claimed by the defendants was signed by plaintiff. The culmination of this last transaction, whereby she received this stock and the $5,000 note, occurred in February, 1927. At this time, the plaintiff's father, who was a retired businessman, was living with the plaintiff. A few days after this transaction, this plaintiff talked with her father, and at that time the father told her that she had made the greatest mistake of her life, and that the stocks that she had received were worthless. Following this conversation, the plaintiff called the defendants to her house and told them what her father had said. She testified, as follows: The evidence discloses that she consulted Mr. Turner, who was a practicing lawyer in Sisseton, S. D., in the early part of November, 1927. The fraud, upon which appellant relies, is alleged misrepresentations as to the value of the stocks which she received. From February to November the appellant did nothing concerning this transaction. In November she consulted Mr. Turner, and Mr. Turner thereafter had a conference with the defendants. On December 29, 1927, Mr. Turner served upon the defendants a notice signed by the appellant, wherein it was offered to return to the defendants the shares of stock, above referred to. Thereafter nothing further was done until this action was commenced on July 28, 1928. During all of this time, the Corona State Bank stock was paying dividends. Dividends upon this stock were paid to and accepted by Mrs. Saunders, at least once prior to the time Mr. Turner served the notice, and twice thereafter.
Under these circumstances, we believe, the trial court correctly ruled that a rescission had not been accomplished. This court has consistently held, under the provisions of section 906 that the rescission to be effective must be made promptly after discovering the alleged fraud. Park v. Latham, 37 S.D. 95, 156 N.W. 799; Riley v. Wheat, 45 S.D. 320, 187 N.W. 425; Russell Miller Co. v. McLean, 48 S.D. 198, 203 N.W. 498; Moen v. Farmers' Implement Co., 49 S.D. 62, 206 N.W. 422; Fleming v. Advance-Rumely Thresher Co. (S. D.) 240 N.W. 203. In the case of Rodgers v. Johnson, 47 S.D. 131, 196 N.W. 295, there is, perhaps, language which would indicate that the delay in making the rescission, after discovering the fraud, would not defeat a rescission unless the delay worked a disadvantage to the other party. We do not believe that this is the rule, and the facts in that case did not necessitate the establishment of any such rule. The facts in that case were that the respondent did not discover the falsity of the misrepresentations until a considerable period of time had elapsed, and it was urged that he should have made such discovery sooner. What was said in that case, therefore, should have reference only to the failure to discover the fraud, and we agree that, unless a delay in discovering the fraud works a disadvantage to another, there...
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