Twing v. Schott, 2857

CourtUnited States State Supreme Court of Wyoming
Citation338 P.2d 839,80 Wyo. 100
Docket NumberNo. 2857,2857
PartiesLloyd E. TWING and Ethel B. Twing, Husband and Wife, Appellants (Plaintiffs below), v. William E. SCHOTT and Helen Schott, Husband and Wife, Appellees (Defendants below).
Decision Date29 April 1959

Lonabaugh & Lonabaugh, R. H. Bennett and E. E. Lonabaugh, Sheridan, for appellants.

Harry E. Leimback and Robert Jerry Hand, Casper, for appellees.

Before BLUME C. J., and PARKER and HARNSBERGER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

Lloyd E. and Ethel B. Twing, husband and wife, brought an action against William E. and Helen Schott, husband and wife, seeking on the grounds of fraud and concealment to rescind a Standard Purchase Offer, Acceptance and Receipt for the purchase of real property occupied as a trailer court and to recover a $6,000 down payment. 1

In summary the facts show that the Twings, whose attention had been attracted through a newspaper advertisement, contacted the Schotts at the trailer court, discussed the matter of purchase, signed the instrument, made the down payment, and took possession of the property. The later complained that neither the sewage system nor the water for the premises was as represented and ultimately brought the suit comprising two causes of action, the first seeking relief because of misrepresentation as to the sewage system and the second because of concealment as to the water for the place. The court found that plaintiffs had failed to sustain the allegations of their petition and entered judgment for defendants. Plaintiffs have appealed, asserting as error the finding that they failed to sustain the allegations of their petition, the general finding against them, and the court's rulings on various evidentiary matters.

Basically, plaintiffs' appeal contends that defendants represented the property to have a good and adequate sewage system with two 1,000 gallon septic tanks and one 5,000 gallon drainage tank, all workable and satisfactory; that said representations were false and known to be so by defendants, and were material factors in influencing plaintiffs to buy; that plaintiffs were ignorant of the falsity of the representations, had a right to rely and did rely on them, and were damaged in consequence; that as to the water supply defendants' superior knowledge of the facts imposed on them a duty to disclose all material facts but that nevertheless certain material facts were undisclosed and plaintiffs were damaged as a result of the concealment.

As in all appealed cases, we must assume that evidence in favor of the successful party is true, must not consider evidence of the unsuccessful party in conflict therewith, and must give to the evidence of the successful party every favorable inference which may reasonably and fairly be drawn therefrom. Schaffer v. Standard Timber Co., Wyo., 331 P.2d 611; Parkinson v. Roberts, Wyo., 329 P.2d 823; and Strom v. Felton, 76 Wyo. 370, 302 P.2d 917.

The foregoing rule becomes somewhat stricter in its application in cases wherein fraud is charged, and we have repeatedly held that one who alleges fraud must prove the same clearly and distinctly enough to satisfy the mind and conscience that the fraud exists. Moreover, fraud will not be imputed to any party when the facts and circumstances out of which it is supposed to arise are consistent with honesty and purity of intention. Havens v. Irvine, 61 Wyo. 309, 157 P.2d 570, 574, 159 P.2d 366. See also First Nat. Bank of Green River v. Barrett, 54 Wyo. 394, 93 P.2d 510; Williams v. Yocum, 37 Wyo. 432, 263 P. 607; 23 Am.Jur. Fraud and Deceit § 22.

One other rule is particularly significant in the consideration of a case of this nature: This court may not substitute its conclusions for the findings made by the lower court. Lucksinger v. Salisbury, 72 Wyo. 164, 262 P.2d 396, 264 P.2d 1007.

In the light of these rules we look to the evidence upon which plaintiffs rely to prove the misrepresentations and concealment which they allege. Such reliance is placed primarily upon the conversation taking place prior to the execution of the purchase agreement and the evidence of what the circumstances actually were at the time. Plaintiffs' witnesses give their version of what was said, and this does not agree entirely with the testimony adduced by defendants. The condition of the property, especially that of the sewage system and the water supply, was discussed by various witnesses but particularly by defendant Schott and by Homer Troutt, a master plumber. We think there is no occasion to set forth all of the testimony in detail. That adduced by plaintiffs tended to show that defendants represented to them that the sewage system was good and the water was furnished by the City of Sheridan, whereas in fact the sewage system was unworkable and the water, furnished by a private company, was subject to additional charges. Defendant Schott testified that he, with two other persons, had installed the sewage system without previous experience, according to 'data that he [the owner of the Sheridan Concrete Block & Pottery Works] had from the Portland Cement Company out of Denver, Colorado, on septic tanks,' that the tanks were of the size represented, and that he had explained to the buyers difficulties regarding the excessive use of water by the tenants and the dropping of rocks in the sewage system by children. He maintained, however, that the system was satisfactory. As to the water supply, he said he had shown his receipts to plaintiffs, thereby indicating that the water was furnished by a private company rather than the City of Sheridan and that in any event the plaintiff Twing, following the execution of the contract, attended a meeting of the water company and agreed to cooperate.

The portions of the evidence which were conflicting can receive no consideration here, but testimony which stands uncontradicted and unimpeached cannot be ignored by a trial court. Beck v. Givens, 77 Wyo. 176, 309 P.2d 715, 717, 313 P.2d 977. We refer then to such portions of the record as seem to be germane.

Schott's statements on cross-examination are significant as to the sewage system:

'Q. And do you recall telling him [Twing] that you had a good sewage system at that time? A. Yes.

'Q. And do you recall telling him that the tanks drained properly? A. They did.

'Q. Do you recall telling him that you had no trouble with the sewage system? A. No, I told him I had trouble with the sewage system but it wasn't no trouble related to the sewage system alone. It was trouble that children would do, such as drop rocks into the sewers and stuff and we'd have to have it rodded.

* * *

* * *

'Q. And you did stress * * * that this thing [sewage system] worked good? A. Yes, to my knowledge, it did.

* * *

* * *

'Q. Was the word 'adequate' the only description used of your system? A. I don't truthfully remember whether it was 'adequate' or 'sufficient'.

'Q. Did you say that all the neighbors were having trouble with their systems but you didn't because it was new? A. Up to that point I had no trouble with my system, as far as my system was concerned. To my knowledge, I had no trouble with my system.

'Q. Just answer 'yes' or 'no'. Did you make that statement? A. I don't remember.

'Q. How many times previous to this meeting on the evening of February 23rd had you pumped your cesspool out? A. I had pumped the cesspool three times from the date I bought it until the day I sold it. And my son had pumped it once.

* * *

* * *

'Q. Isn't it true, Mr. Schott, that you were pumping out this main tank about once a week or more for some time before you sold this property to the Twings? A. I pumped the main tank, yes.'

As to the water for the property, Schott testified:

'Q. What was said concerning the water bills? A. Well, he asked me what kind of water I had. Now, I thought he was asking whether I was getting well water or what water and I told him, 'City water.'

'Q. Well, were you getting city water? A. From the Suburban Water Company. The Suburban Water Company buys water from the city and resells it out of the city.

* * *

* * *

'Q. You didn't tell him that you had a lawsuit against Mr. and Mrs. Foss [the persons from whom the Schotts had purchased the real property] concerning some shares of stock [in the Suburban Water Company]? A. No, I didn't tell him that.

'Q. Did you tell your agent anything about this lawsuit or the water situation with the company? A. No, not that I can recall.'

Homer Troutt testified that he was a master plumber; that he looked over the place and made an investigation. He was the only witness who purported to be an expert on the subject of sewage disposal. The following portions of his testimony, although somewhat disconnected and occasionally lacking in meaning, were not contradicted directly.

'Q. Now, between the first time in March that you went down and late in April or May, did you go down at any time to look over some septic tanks or some supposed septic tanks and cesspool? A. Well, they [the Twings] was having sewer trouble and I went down and I explained to them that there wasn't adequate drainage in the leaching pit * * * in other words, it would be the cesspool.

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* * *

'Q. Based upon your experience, what was wrong with the leaching pit or 'cesspool', as you call it? A. Well, my experience in that end of the town, you have to go between 14 and 15 feet to get into the flow of sheet water that comes off the hill and from the south part of the town. There's a stratus of gravel down there about 12 1/2 or 13 feet but it's not a thick vein; and you get a little surface water, but very little. And when you break through that, why, then you get into your drainage. In other words,----

'Q. In other words, it was your opinion that this wasn't draining because it wasn't far enough down? A. That's right.

'Q. Now, was there anything else wrong with it, with reference to its location? A. Well, the...

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31 practice notes
  • Richey v. Patrick, No. 94-50
    • United States
    • United States State Supreme Court of Wyoming
    • 18 Octubre 1995
    ...that majority rule. The adoption of the RESTATEMENT (SECOND) OF TORTS § 551 is consistent with Wyoming precedent. In Twing v. Schott, 80 Wyo. 100, 115, 338 P.2d 839, 844 (1959), the court dealt with a response by a seller of real estate to the purchaser's inquiry about the water, Perhaps th......
  • Brooks v. Zebre, No. 88-263
    • United States
    • United States State Supreme Court of Wyoming
    • 17 Mayo 1990
    ...matter. Meeker v. Lanham, 604 P.2d 556 (Wyo.1979); Simpson v. Western National Bank of Casper, 497 P.2d 878 (Wyo.1972); Twing v. Schott, 80 Wyo. 100, 338 P.2d 839 (1959). The special responsibility which we attributed to a real estate broker in Walter v. Moore, 700 P.2d 1219 (Wyo.1985); Hag......
  • Johnson v. Soulis, No. 4458
    • United States
    • United States State Supreme Court of Wyoming
    • 21 Noviembre 1975
    ...in connection with the transaction, the record discloses that these contentions come within the precept set forth in Twing v. Schott, 80 Wyo. 100, 338 P.2d 839 (1959), and Goldberg v. Miller, 54 Wyo. 485, 93 P.2d 947 (1939), reh. den. 54 Wyo. 499, 96 P.2d 570 (1939), that fraud will not be ......
  • Bethurem v. Hammett, No. 86-200
    • United States
    • United States State Supreme Court of Wyoming
    • 15 Mayo 1987
    ...40 Wyo. 226, 276 P. 452, 456 (1929). Since Sellers have regained the property, rescission only invokes repayment. Twing v. Schott, 80 Wyo. 100, 338 P.2d 839 (1959). See Flygare v. Brundage, 76 Wyo. 350, 302 P.2d 759 (1956), where the remedy of rescission was recognized, although the facts a......
  • Request a trial to view additional results
31 cases
  • Richey v. Patrick, 94-50
    • United States
    • United States State Supreme Court of Wyoming
    • 18 Octubre 1995
    ...that majority rule. The adoption of the RESTATEMENT (SECOND) OF TORTS § 551 is consistent with Wyoming precedent. In Twing v. Schott, 80 Wyo. 100, 115, 338 P.2d 839, 844 (1959), the court dealt with a response by a seller of real estate to the purchaser's inquiry about the water, Perhaps th......
  • Brooks v. Zebre, 88-263
    • United States
    • United States State Supreme Court of Wyoming
    • 17 Mayo 1990
    ...matter. Meeker v. Lanham, 604 P.2d 556 (Wyo.1979); Simpson v. Western National Bank of Casper, 497 P.2d 878 (Wyo.1972); Twing v. Schott, 80 Wyo. 100, 338 P.2d 839 (1959). The special responsibility which we attributed to a real estate broker in Walter v. Moore, 700 P.2d 1219 (Wyo.1985); Hag......
  • Johnson v. Soulis, 4458
    • United States
    • United States State Supreme Court of Wyoming
    • 21 Noviembre 1975
    ...in connection with the transaction, the record discloses that these contentions come within the precept set forth in Twing v. Schott, 80 Wyo. 100, 338 P.2d 839 (1959), and Goldberg v. Miller, 54 Wyo. 485, 93 P.2d 947 (1939), reh. den. 54 Wyo. 499, 96 P.2d 570 (1939), that fraud will not be ......
  • Bethurem v. Hammett, 86-200
    • United States
    • United States State Supreme Court of Wyoming
    • 15 Mayo 1987
    ...40 Wyo. 226, 276 P. 452, 456 (1929). Since Sellers have regained the property, rescission only invokes repayment. Twing v. Schott, 80 Wyo. 100, 338 P.2d 839 (1959). See Flygare v. Brundage, 76 Wyo. 350, 302 P.2d 759 (1956), where the remedy of rescission was recognized, although the facts a......
  • Request a trial to view additional results

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