Schoellhamer v. Rometsch

• Decision Date: 03 December 1894
• Citation: 38 P. 344,26 Or. 394
• Parties: SCHOELLHAMER v. ROMETSCH.
• Court: Oregon Supreme Court

38 P. 344

26 Or. 394

SCHOELLHAMER v. ROMETSCH.

Supreme Court of Oregon

December 3, 1894

Appeal from circuit court, Multnomah county; H. Hurley, Judge.

Action by Katie Schoellhamer against John Rometsch to recover the amount paid on a contract to purchase land. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover $550 advanced by plaintiff to the defendant on a contract for the purchase of certain land which it is alleged she was induced to enter into by coercion and fraudulent representations. The complaint, in substance is that plaintiff, who is a native of Germany, and understands but little of the English language, arrived in Portland with her three children on the 5th of May, 1893, and took a room at a lodging house kept by the defendant; that at the time of her arrival, and for several days thereafter, she was sick and suffering in both body and mind, and by reason thereof incapable of exercising sound judgment or asserting her own will in business affairs against the representations wishes, importunities, and constraint of others, and wholly ignorant of the location and value of real estate in and about Portland, as defendant well knew; that on the day after her arrival, while she was in said condition at defendant's lodging house, he knowingly and falsely stated and represented to her that a certain tract of land containing 10 acres, of of which he was the owner, was free from all incumbrances, and was situated within 8 miles of the city of Portland by the usually traveled route, and worth not less than $1,500 in the market at that time, and urged and importuned her to purchase the same at the price of $1,450 and surrender to him, in part payment thereof, a draft or certificate of deposit on a certain bank for $700, which she then owned and held; that plaintiff refused to make such purchase or payment, and repeatedly requested defendant to desist from his efforts to induce her to do so on account of her sickness and inability to attend to business matters, but defendant continued his importunities, and also employed harsh language and other means of intimidation and coercion towards the plaintiff, to constrain and compel her to make said purchase and payment, whereby she was greatly annoyed, harassed, perplexed, confused, and rendered wholly incapable of exercising her judgment or will in reference to such purchase or payment, and defendant then and there well knew the same; that said representations of the defendant were false, and that said tract of land was then incumbered by mortgage liens to the amount of over $700, and could not be reached by any practicable route from the city of Portland in a less distance than 13 miles, and was not of the value of $1,500, or of any greater value than $400, all of which defendant then and there well knew; that, when such contract was executed, plaintiff had not seen the land, and had no other knowledge or information as to its location, condition, or value than the statements and representations of the defendant, which she relied upon and believed to be true, as defendant well knew; that, on the said next day after her arrival at Portland, plaintiff was wrongfully induced, constrained, and coerced, against her will and without her consent, by said false statements, representations, harsh language, and intimidation made to and exercised towards her by defendant as aforesaid, to deliver up said draft or certificate of deposit to defendant, and to receive from him a certain pretended bond for a deed for said tract of land, conditioned for a conveyance thereof upon payment by plaintiff to him of the sum of $1,500, with interest on deferred payments at the rate of 7 per cent, per annum and reciting the payment of $550, being the portion of the proceeds of said draft or certificate of deposit retained and converted by defendant to his own use; that as soon as plaintiff recovered from her sickness, and discovered the true location and condition and value of the land, and the falseness of said statements and representations of defendant, and prior to the commencement of this action, she rescinded said transaction, and every part thereof, and so notified defendant, and tendered and offered to return to him his bond for the deed, and demanded the repayment to her of the said sum of $550, and interest from May 6, 1893, at the rate of 8 per cent. per annum, but defendant refused to receive said bond for a deed, or to repay plaintiff said sum of $550, with interest, or any part thereof; that, by reason of the premises, defendant is justly indebted to plaintiff in the sum of $550, and interest thereon from said last-mentioned date at the rate of 8 per cent. per annum. A general demurrer to this complaint having been overruled, the defendant answered, denying all the allegations of the complaint and affirmatively alleging that he was the owner in fee of the land described in the complaint, and that it was of the value of over $1,600; that the husband of plaintiff was her agent, and as such purchased the land of him for $1,500, after he had examined the same and fully informed himself as to its location, condition, and value; that, by the terms of the contract, $550 of the purchase price was to be paid in cash, and the balance on or before two years from date; that the land is situated about 9 1/2 miles from Portland, on what is known as the "Cornell Road," and is well improved, cleared, and ready for use; that the certificate of deposit referred to in the complaint was delivered to him as part payment on the purchase price of said land; and that plaintiff purchased the land well knowing all the facts and circumstances concerning it, and it was sold to her at her earnest solicitation and request.

The allegations of the answer were denied by the reply, and, upon the issues thus made, the cause was tried by a jury, which returned a general verdict in favor of plaintiff for the amount claimed, and, under the direction of the court, a special verdict, finding (1) that defendant employed duress towards the plaintiff, consisting of persistence and undue persuasion, but no threats; (2) that defendant made false representations to plaintiff concerning the distance from Portland to the property in question, that it was free from incumbrances, and concerning the value of buildings and improvements, and that he knew these representations to be false, and made them with an intent to deceive the plaintiff, and that she, relying thereon in a measure, although not competent to thoroughly understand or comprehend, was induced to make the purchase. A motion for a new trial, and for a judgment notwithstanding the general verdict, being overruled, judgment was entered for plaintiff, and defendant appeals.

A.F. Sears, Jr., for appellant.

James F. Watson, for respondent.

BEAN C.J. (after stating the facts).

1. It is contended by the defendant that the complaint is insufficient to charge fraud because it does not aver in direct terms that the alleged fraudulent representations were made by defendant with an intent to deceive the plaintiff. To support this contention, reliance is had upon the case of Rolfes v. Russel, 5 Or. 400. This was an action for deceit to recover damages for false representations as to the character, quality, and boundaries of a certain tract of land sold by the defendant to the plaintiff. The complaint did not allege that defendant knew the representations alleged to have been made by him to be false, and for this reason the court very properly held that a cause of action was not stated, and that the complaint was insufficient to support the verdict. In the course of the opinion, however, it was said that, "the gist of this class of actions being fraud, in order to maintain them it is necessary to aver and prove (1) that the representations made were false; (2) that defendants knew them to be false; (3) that they were made with an intent

to defraud; and (4) that...