Scott v. Walton

• Decision Date: 28 February 1898
• Parties: SCOTT v. WALTON et al.
• Court: Oregon Supreme Court

52 P. 180

32 Or. 460

SCOTT v. WALTON et al.

Supreme Court of Oregon

February 28, 1898

Appeal from circuit court, Josephine county; H.K. Hanna, Judge.

Action by B.F. Scott against J.D. Walton and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Davis Brower, T.P. Hackleman, and L.H. Montanye, for appellant.

G.W Colvig (R.G. Smith, on brief), for respondents.

BEAN, J.

This is a suit to cancel a deed on the ground of fraud. The facts are that on April 15, 1893, the plaintiff traded to the defendant a farm in Josephine county, and certain personal property thereon, for a dwelling house and two lots in Lebanon, Linn county. The trade proceeded upon the basis that the respective properties were of equal value, but the Lebanon property was incumbered by a mortgage to secure the payment of $900, due December, 1894; and to indemnify the plaintiff against such mortgage the defendant assigned and transferred to him a promissory note of date March 8, 1893, on Wilson &amp Chase, for $873.24, due 22 months thereafter. On June 26 1894, the plaintiff, becoming dissatisfied with the trade offered to rescind the contract, and on the following day commenced this suit to cancel and set aside the conveyance from him to the defendant on the grounds (1) that defendant falsely and fraudulently represented the Lebanon property to be worth the sum of $2,500, when, in truth and in fact, it was worth no more than $1,000; and (2) that he falsely and fraudulently represented that the Wilson & Chase note was as good as gold, and would be paid at maturity, and was ample and sufficient to indemnify him against any loss he might sustain by reason of having to pay the $900 mortgage when, as a matter of fact, well known to defendant, such note was of no value whatever. The evidence shows that the negotiations between the parties for the exchange continued some 10 or 15 days before the trade was finally consummated; that plaintiff resides near Lebanon, and was acquainted with the property defendant was offering to trade to him, and that he not only had a full opportunity to, but did actually, examine it before making the exchange. Under such circumstances, the mere statement of the defendant as to its value furnishes no ground for avoiding the contract. The law recognizes the well-known fact that it is characteristic of human nature for the owner, when about to sell his property, to set a high value thereon for the purpose of enhancing it in the buyer's estimation; and hence, when the parties are dealing at arm's length, it does not help a purchaser who accepts and relies upon the vendor's statements as to value when no warranty is intended, and when the language used is not an affirmation of some specific fact, but the mere expression of opinion. 1 Bigelow, Frauds, 49; 2 Pom.Eq.Jur.§ 878.

Upon the other branch of the case the court found in favor of the defendant, and we are of the opinion that its conclusions ought not to be disturbed. The evidence is somewhat conflicting. The plaintiff testifies that defendant represented to him that the Wilson & Chase note was good, and would be paid at maturity, while the defendant says that he made no such representations or statements, but that the plaintiff relied upon his own judgment in accepting the note. The burden of proof is upon the plaintiff, and we do not think he has made out his case in that clear and satisfactory manner requisite in cases of this character, nor did he offer to rescind with sufficient promptness after discovering the alleged fraud. He admits that he knew the circumstances under which the Wilson & Chase note was given and that the...