Tooele Improvement Co. v. Hoffman

• Decision Date: 05 March 1914
• Docket Number: 2497
• Citation: 141 P. 744,44 Utah 532
• Court: Utah Supreme Court
• Parties: TOOELE IMPROVEMENT CO. v. HOFFMAN

141 P. 744

44 Utah 532

TOOELE IMPROVEMENT CO. v. HOFFMAN

No. 2497

Supreme Court of Utah

March 5, 1914

On Application for Rehearing June 19, 1914.

APPEAL from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by Tooele Improvement Company against Frank Hoffman.

Judgment for plaintiff. Defendant appeals.

AFFIRMED, AND PETITION FOR REHEARING DENIED.

D. W Moffatt and E. A. Walton for appellant.

APPELLANT'S POINTS.

False representation of a material fact constituting the inducement of a contract on which the purchaser has a right to rely is always a ground for rescission in a court of equity. A misrepresentation to purchaser of a lot in a village that a large sum is to be invested therein in a manufacturing enterprise if it was the inducing cause of the purchase entitled him to rescind. The intent of the person making the representation is wholly immaterial. The purchaser cannot be held to his contract on the ground that the person making the representation believed it to be true. If a seller makes a representation which from its nature may induce the buyer to enter into a contract of purchase of land on the faith of it, it will be inferred that he was induced thereby to contract; and he need not prove that he in fact relied upon the representation. Means on the part of the purchaser of discovering that a representation was false do not destroy his right to rescind. No man can be bound by a waiver of his rights unless such waiver was distinctly made with full knowledge of the rights which he waived and the fact that he knows his rights and intends to waive them must clearly appear. (Wilson v. Carpenter, 91 Va. 183; Cressler v. Rees, 27 Neb. 515; Rover Iron Co. v. Trout, 83 Va. 397; Waters v. Mathingly, I Bibb 244; Prewitt v. Trimble, 92 Ky. 176.) A written agreement may be modified, explained, reformed or altogether set aside by parol evidence or oral promises or undertakings material to the subject-matter of the contract made by one of the parties at the time of the execution of the writing and which induced the other party to put his name to it. (Walker v. France, 112 Pa. St. 203; Monell v. Colden, 12 Johns. 395; Warville on Vendors, 928, 972.) The record discloses no word or act of Hoffman that can be regarded as a ratification of his purchase, after becoming acquainted with the misrepresentation accompanying the purchase. Confirmation must be a solemn and deliberate act. When the original transaction is infected with fraud, the confirmation of it is so inconsistent with justice and so likely to be accompanied with imposition that the courts watch it with the utmost strictness and do not allow it to stand unless proven by the clearest evidence. (Cumberland Coal Co. v. Sherman, 20 Md. 117; Montague v. Manning, 76 Va. 307.)

L. L. Baker and Van Cott, Allison & Riter for respondent.

RESPONDENT'S POINTS.

He who is silent when conscience compels him to speak, should be debarred from speaking when conscience requires him to keep silent. (2 Pom. Eq. Jur., par. 818; 2 Herman on Estoppel, par. 937-9; Clark v. Kirby, 18 Utah 258; Ott v. Pace, 115 P. 37 [Mont.]. Negligent silence may work an estoppel as effectively as an express misrepresentation. If the building was defective, Hoffman should have given timely notice so that the plaintiff could have remedied the defect; the plaintiff had a right to rely on Hoffman's silence as an acceptance of the building. 16 Cyc. 681; 48 Cent. Dig. Col. 327, par. 202; 48 Cent. Dig. Col. 344, par. 213; Ott v. Pace, 115 P. 37.) We further contend that under the facts of this case the vendee, Hoffman, had no right to attempt to rescind the contract of purchase without first restoring, or offering to restore, the possession of the premises to the vendor. (Gates v. McLean, 70 Cal. 42, 11 P. 489; Maddock v. Russell, 109 Cal. 417, 42 P. 139; 48 Cent. Dig. Col. 336, par. 209.) Under the express terms of the agreement of sale, and under the facts as proven, and the admitted facts, the plaintiff had a legal and equitable right to declare a forfeiture of the contract as it did by its letter to Hoffman of December 13, 1910. Time was of the essence of this contract and the vendor could declare a forfeiture upon the non-payment of any amount. (Reese v. Westfield, 105 P. 837, [Wash.]; Garvey v. Barkley, 104 P. 1108, [Wash.]; Prairie Dev. Co. v. Leiberg, 98 P. 616, [Idaho]; McAdams v. Falkner, 73 P. 1064, [Cal.])

McCARTY, C. J., FRICK, J. STRAUP and FRICK, JJ., McCARTY, C. J., concurring.

OPINION

McCARTY, C. J.

We are met at the threshold of this appeal by a motion filed by respondent to strike the bill of exceptions on the ground that the draft thereof was not prepared and served on respondent within thirty days after the service of notice of the entry of judgment as provided by Comp. Laws 1907, section 3286. The notice of the entry of judgment was served on respondent October 2, 1912. No motion for a new trial was filed in the cause. A draft of the prepared bill of exceptions was served on respondent January 25, 1913, three months and twenty-three days after the service of notice on respondent of the entry of judgment. Section 3286, supra, provides that a bill of exceptions may be prepared and served within thirty days after the service of notice on the opposite party of the entry of judgment. Section 3329 provides that the time for "the preparation, service, filing, or presentment of bills of exceptions, or of amendments thereto . . . may be extended, upon good cause shown, by the court in which the action is pending or by a judge thereof." The record shows that "no additional time to prepare and serve a bill of exceptions was granted to defendant (appellant) by the court or by the judge." On February 3, 1913, defendant moved the court to relieve him from his "failure to . . . get extension of time in which to serve bill of exceptions herein and to settle, notwithstanding such failure, the bill of exceptions," on the ground that "said failure to serve the same within the time limited was due to the impossibility of procuring the transcript of the testimony prior to the 23d day of January, A. D. 1913." The motion was supported by affidavit of counsel for defendant in which it was alleged that the failure to prepare and serve bill of exceptions in time was due to his (counsel's) inability to procure a transcript of the reporter's notes of the evidence and proceedings within the time prescribed by section 3286, and the failure of counsel in inadvertently failing to get an order of court extending the time in which to prepare and serve bill of exceptions. The court, over timely objections made by plaintiff, made an order that "the defendant be relieved from failure to serve and settle bill of exceptions in time." Plaintiff excepted to the ruling of the court in that regard. On March 10, 1913, the bill of exceptions was allowed and settled by the court. Respondent, in a cross-assignment of errors, presents the ruling of the court relieving defendant from his "failure to serve and settle bill of exceptions in time" to this court for review.

This court has repeatedly held that while the district court may, before the statutory period for serving a bill of exceptions has elapsed, extend the time "upon good cause shown," as provided in section 3329, it is without authority to grant such extension if, at the time the application is made, the statutory time for service of the bill has fully expired. Butter v. Lamson, 29 Utah 439, 82 P. 473; Bryant v. Kunkel, 32 Utah 377, 90 P. 1079; Warnock Ins. Agency v. Peterson Inv. Co., 35 Utah 542, 101 P. 699; Metz v. Jackson, 43 Utah 496, 136 P. 784. On authority of these cases, which we think were correctly decided, the motion to strike the bill of exceptions is sustained.

No claim is made that the judgment is not responsive to the pleadings, or that it is not supported by the findings of fact and conclusions of law. The judgment therefore must be, and the same hereby is, affirmed. Respondent to recover costs.

STRAUP and FRICK, JJ., concur.

ON APPLICATION FOR REHEARING.

FRICK J.

Appellant has filed a petition for rehearing in which it is insisted that we erred in striking the bill of exceptions.

It is vigorously contended that, in sustaining the motion to strike, we not only have in effect overruled the case of Morgan v. O. S. L. R., 27 Utah 92, 74 P. 523, but have ignored the particular provision of Comp. Laws 1907, section 3005, upon which the decision in the Morgan Case is based. It is true that in the Morgan Case the motion to strike the bill of exceptions was interposed for the reason that the same was not prepared and served within the time required by the statute, the same as in this case, and that this court, upon the application of the appellant railroad company, permitted it to show cause why it did not prepare and serve the bill of exceptions within the time required by statute, and upon such a showing it granted the appellant permission to serve and file the bill of exceptions notwithstanding the time fixed by statute had expired. The trial court in that case found that the reason the bill of exceptions was not served in time was on account of the excusable neglect of appellant's attorneys. This court held in that case that the trial court had the power to grant the relief sought under the following provision contained in section 3005, supra, to wit:

"The court may, in furtherance of justice, and on such terms . . . as may be proper, allow a party . . . from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect." (Italics ours.)

It was accordingly held that the preparation and settlement of a bill of exceptions is a proceeding in a pending...