Sonnesyn v. Akin
| Decision Date | 20 May 1905 |
| Citation | 104 N.W. 1026,14 N.D. 248 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass county; Pollock, J.
Action by J. K. Sonnesyn against L. W. Akin and G. M. Babcock. Judgment for defendants, and plaintiff appeals.
Affirmed.
Morrill & Engerud and Frich & Kelly, for appellant.
The fifth ground for a motion for a new trial, viz "Excessive damages appearing to have been given under the influence of passion or prejudice," is available only where, though the case may be properly submitted, the jury have given damages in an unreasonable amount on account of passion or prejudice. 14 Enc. Pl. & Pr. 886; Hayne on New Trials, 563, section 3; Mechelke et al. v. Bremer, 17 N.W. 682; Pratt v. Pioneer Press Co., 18 N.W. 836.
It is not claimed that the specifications of error did not justify the findings of fact made by the jury, and no other grounds under the statute can be considered. Section 5467, Rev. Codes 1899; Baumer v. French, 8 N.D. 319, 79 N.W. 340; Parrot v. Hot Springs, 68 N.W. 329; Gould v Elevator Co., 2 N.D. 216, 50 N.W. 969; McKenzie v Bismarck Water Co., 6 N.D. 361, 71 N.W. 608; Ilstad v. Anderson, 2 N.D. 167, 49 N.W. 659; Flugle v Henschel, 6 N.D. 205, 69 N.W. 195.
False representation as to title is fraud. 14 Am. & Eng. Enc. Law (2d Ed.) 130.
In case of fraud the party defrauded can recover what he has parted with or its value by reason of the fraud. 6 Wait's Ac. & Def. 132-133; 14 Am. & Eng. Enc. Law (2d Ed.) 165; Nichols v. Michaels et al., 23 N.Y. 264.
By exercising this right the contract was extinguished, and the position of the parties became the same as if there had never been such a contract. Section 3931, Rev. Codes 1899; 14 Am. & Eng. Enc. Law, 158.
Party who fraudulently obtained possession of the property, could be sued in replevin or conversion, or the tort could be waived and suit be brought on implied contract. See authorities supra.
Instead of rescinding, the defrauded party could affirm, and if he eventually suffered any detriment by the fraud, he could recover whatever damages he could show he had suffered by the deceit. 3 Wait's Ac. & Def. 452-454.
Pierce & Tenneson, and Ball, Watson & Maclay, for respondents.
Representations concerning ownership are generally material, but not always. Huffman v. Long, 42 N.W. 355.
Misrepresentations, which are material when made, may become immaterial, because no damage is suffered on acount of them, and the reason that they are immaterial may be because no damage has followed. Wiley v. Howard, 15 Ind. 169; Barber v. Kilbourn, 16 Wis. 485; Beard et al. v. Bliley, 34 P. 271; Armstrong v. Breen, 69 N.W. 1125; Davidson v. Moss, 5 How. 673; Johnson v. Seymour, 44 N.W. 344; Hunt v. McConnell, 1 T. B. Mon. 222.
Fraud without damage gives no cause of action. Marriner v. Denison, 20 P. 386; Purdy v. Bullard et al., 41 Cal. 444; Freeman v. Venner, 120 Mass. 424; Bartlett v. Blaine, 85 Ill. 25.
In case of an executory contract for the sale of land, if the vendor sells it to a third person prior to the time for the consummation of the contract, this does not constitute a ground for rescission, for the vendor may reinvest himself with the title. Joyce v. Shafer et al., 32 P. 320; Garbirino v. Roberts, 41 P. 857; Royal v. Dennison et al., 42 P. 39.
The party rescinding a contract must inform as to whom he rescinds as soon as possible, so that both parties may be put in statu quo. Section 3934, subdivision 1, Rev. Codes 1899; Snow v. Alley, 11 N.E. 764.
Plaintiff's action is an action upon the case for damages for fraud and deceit, and it goes upon the theory of the continued existence of the contract which was induced by the fraud complained of. Whiteside v. Brawley, 24 N.E. 1088; Heastings v. McGee, 66 Pa.St. 384; Kimball v. Cunningham, 4 Mass. 502, 505; Johnson v. Cookerly, 33 Ind. 15; Wheeler v. Dunn, 22 P. 827; Stuart v. Hayden, 169 U.S. 1, 18 S.Ct. 274; Chilson v. Houston, 9 N.D. 498, 503, 84 N.W. 354.
One seeking rescission must put him as to whom he rescinds in statu quo. Hammond v. Pennock, 61 N.Y. 145.
When the complaining party seeks to compel the other to buy his property, whether he will or not, his conduct is an affirmance of the contract. Hendricks v. Goodrich, 15 Wis. 679; Daly v. Brennan, 57 N.W. 963.
In an action of fraud and deceit, the cause of action requires damages as one of the essential elements, and without it there is no right even to nominal damages and no cause of action. Alden v. Wright et al., 49 N.W. 767.
The motion for a new trial was properly granted upon the statutory ground, "insufficiency of the evidence to justify the verdict." 14 Enc. Pl. & Pr. 782, 783, and cases cited; 14 Enc. Pl. & Pr. 776; Algeo. v. Duncan, 39 N.Y. 313; Richardson v. Van Voorhees, 3 N.Y.S. 399.
Granting a new trial on above grounds, or that the verdict is contrary to the evidence, is discretionary, and such action will be reversed only for manifest abuse. 14 Enc. Pl. & Pr. 983, 981, 978, 976, 975; Gull River Lbr. Co. v. El. Co., 6 N.D. 276, 69 N.W. 691; Pengilly v. J. I. Case Thresher Co., 11 N.D. 249, 91 N.W. 63.
YOUNG, J. MORGAN, C. J., concurs. ENGERUD, J., did not sit in the case; HON. C. J. FISK, Judge of the First Judicial District, sitting by request. FISK, District Judge, dissenting.
This is an action to recover damages for fraud. The plaintiff has appealed from an order of the district court vacating the verdict and judgment entered therein in his favor and granting a new trial. The defendant's motion for a new trial was made upon the minutes. The granting of the motion is assigned as error. It is essential to a correct understanding of the questions presented upon this appeal to set out the material allegations of the complaint and answer, and also the verdict upon which the judgment vacated was based.
The complaint alleges "that on the 30th day of September, 1902, the defendants, with intent to deceive and defraud the plaintiff, then and there falsely and fraudulently pretended and represented to the plaintiff that they were the owners and legally entitled to enter into a contract to sell and convey to the plaintiff the following described real estate [describing 960 acres of land situated in Ransom county], and could give a contract for a good and perfect title thereto, and would furnish the plaintiff with an abstract of title, which abstract of title would show that the defendants were the owners of said described land and premises and had the legal right to enter into a contract to sell and convey the same; that the plaintiff, relying upon such representations, entered into a contract to purchase the said described premises and land of the defendants, and paid the defendants thereunder, in merchandise and cash, the sum of $ 12,857.33; that the defendants were not the owners of said described lands and premises, and were not legally entitled to enter into a contract to sell and convey the same, and could not and have not furnished the plaintiff an abstract of title of said land and premises showing that they were the owners of the same; that at the time plaintiff made the contract with the defendants to purchase said lands and made said payments thereon, said lands were owned by others; * * * that by reason of the premises the plaintiff has been damaged in the sum of $ 12,857.33" --for which sum he demands judgment.
The defendants, in their answer, admit the execution of the written contract referred to in the complaint, and attach a copy of the same to their answer as an exhibit; this being known in the record as "Exhibit A." They also admit the receipt of a $ 2,500 cash payment upon the contract, and a further payment by the delivery of the stock of merchandise as alleged in the complaint. But they deny that they stated or represented that they were the owners of the land, and "especially deny that by reason of any of the facts set forth in the complaint plaintiff has been damaged in the sum of $ 12,857.33, or in any other sum or amount whatever," and allege "that the defendants have duly complied with all the terms and conditions of said written contract, and have tendered to the plaintiff an abstract of title to said premises, and that they are now ready, able and willing to convey, or cause to be conveyed to the plaintiff, by good and sufficient deeds of conveyance, all the lands in said contract mentioned, in accordance with the terms and conditions of said contract, and conveying to the plaintiff full title to all of said lands, as therein mentioned, upon the full performance by the plaintiff of the other terms and conditions of said contract, and that the defendants herewith tender and offer full and complete performance of the terms and conditions upon their part to be performed."
The contract was signed by the plaintiff and by the defendants. By the terms of this contract the plaintiff agreed to purchase the lands in question at an agreed price of $ 25,920. The contract describes the land, and fixes the terms of payment and rate of interest on deferred payments. Under it $ 2,500 was to be paid upon its execution, and $ 10,320 was to be paid by the delivery to the defendants of a certain stock of merchandise, located at Ormsby, Minn., at wholesale price, the taking of the inventory to begin on October 3 1902. A further payment of $ 2,500 was to be made on January 1, 1903, when the deal was to be completed. Plaintiff assumed a mortgage upon the land, and was to pay the remainder of the purchase price in five equal annual installments. The contract makes no reference to the ownership of the land or the condition of the title, but provides that: "An abstract of title is to be furnished to me (Sonnesyn) by you when $ 2,500 of...
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