Spitler v. Perry Town Lot & Imp. Co.
| Citation | 179 N.W. 69,189 Iowa 709 |
| Decision Date | 29 September 1920 |
| Docket Number | 32440 |
| Parties | JOHN D. SPITLER, Appellee, v. PERRY TOWN LOT AND IMPROVEMENT COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Perry Superior Court.--W. W. CARDELL, Judge.
SUIT to rescind on account of fraudulent representations, alleged to have induced plaintiff to purchase certain town lots. He has recovered the purchase price, and defendant appeals.
Reversed.
Dugan & Dugan, for appellant.
Thos M. Tiernan and W. H. Winegar, for appellee.
I.
We shall assume that the representations which the appellee relies upon are actionable, false representations. These seem to be that the defendant company falsely represented to plaintiff, when he purchased the lots: (1) that, within two years thereafter, a street railway would be constructed and operated between the main business portions of Perry and the Dilenbeck Addition, lying to one side of the city; (2) that a contemplated steel plant, then in the course of construction, would be finished, and would employ a certain number of men that would live in the addition; (3) that a college would be constructed and in operation on a definite location in said addition. We shall further assume that, in reliance, the plaintiff purchased at a price the lots would be worth with said improvements constructed, and in operation. The avoidance presented by defendant is that plaintiff has forfeited the right to rescind, because he has waited an unreasonable length of time after discovering the alleged fraud, before he attempted to rescind. The appellant complains that this avoidance was submitted to the jury, and says said defense was established, as matter of law. Appellee answers that whether there had been such unreasonable delay was fairly a jury question, and that the jury could find, as it did find, that notice of rescission was served soon after plaintiff learned definitely that said representations were not to be complied with. Appellee tells us there might be some merit in the claim of appellant if it had clean hands, but that the defense or avoidance is not available, because the cry of "unreasonable delay" is made "in order to cover the dirt and grease of fraud and deception upon his own hands," that appellant should receive slight consideration, "blackened as it is with its fraud and deception, with no other defense than simply that its victim did not act with the same promptness and capacity that a captain of industry like the president of the appellant company might have used."
In every case where it was held rescission was barred for delay, it may, perhaps, have been possible to say that it enabled the other party "to enjoy the fruits of its fraud and misrepresentations simply because its victims did not realize as quickly as the other party did, that he was being defrauded." The remedy of rescission may not be availed of even though the thing sought to be rescinded is a fraud committed by the other party. It must necessarily follow, then, that, if there was unreasonable delay, that will defeat rescission although the other party does not have "clean hands." The existence of such uncleanliness will not bar the defense of unreasonable delay in rescinding. With what the effect of a fraud may be where he who commits it is seeking affirmative relief, is a question we do not have to deal with on this appeal.
1-a
Appellee argues that appellant cannot complain that his defense was not submitted to the jury, because the question of reasonable time, waiver, and estoppel, urged by appellant in answer, were submitted in proper instructions. How does that sustain submission to the jury? If the defense was established as matter of law, it should not have been submitted to the jury at all. And it is no answer that the instructions which submitted it were correct in form.
II. It is elementary that any acts on part of the buyer which clearly indicate an attempt to abide by the contract of sale are evidences of affirmance of the contract, and work a waiver of the right to rescind. 39 Cyc. 1292. But whether such acts are sufficient to establish either affirmance or waiver is ordinarily a jury question. We have held that the question of reasonable time is always for the jury, where there is a dispute in the facts, if under circumstances the jury would be warranted in holding the rescission to be within a reasonable time. Mattauch v. Riddell Auto. Co., 138 Iowa 22, 24, 115 N.W. 509. We do not challenge the correctness of the statement in Duetzmann v. Kuntze, 147 Iowa 158, 162, 125 N.W. 1007, that "what is a reasonable time necessarily depends on circumstances." But most fact issues on the law side are for the jury. Nevertheless, any fact question may, in the absence of conflict, become a law question. And we have held that, on some states of evidence, the very question at bar will become one for the court. In Moore v. Howe, 115 Iowa 62, 65, 87 N.W. 750, we said:
In Mattauch v. Riddell Auto. Co., 138 Iowa 22, 115 N.W. 509, appellant bought an automobile in August, 1905. In September following, he had made up his mind the machine was not satisfactory, and didn't work; in December, he offered to rescind, by tendering a return, and this court said:
"Counsel for appellant contend that the question as to reasonable time is for the jury; but, where there is no conflict in the evidence as to the facts, and it appears that the time which has elapsed between a knowledge, on part of the buyer, of the defects in the article warranted, and the time of the attempted rescission, is so great that under no circumstances appearing in the evidence the jury would be warranted in holding the rescission to be within a reasonable time, the court may decide the question as a matter of law, and deny plaintiff relief on the theory of rescission."
And we do not deem it to be controlling, but merely adventitious, that, in the cases where such delay has been held to be unreasonable as matter of law, there was most often involved property that was more or less perishable; nor that the ownership was constantly changing, for which reason it was impossible to place the parties in statu quo. We rule there may be cases wherein it may be held, as matter of law, that the delay was unreasonable, even though the property was not perishable, and was not constantly changing hands.
III. This brings us to the substance of the appeal. Appellee says that these representations were not as to existing facts, but statements as to what was to occur in the future. He concedes that, if the representations had been as to existing facts then, immediately on discovery of their falsity, it would have been his duty to rescind promptly. But he argues that, as these representations deal with the future, it might, in certain circumstances, remain an open question, even after discovery of falsity, whether the thing represented might not still come true later. Appellee concedes that two years was the time limit for...
To continue reading
Request your trial