Wicks v. Metcalf

• Decision Date: 06 March 1917
• Citation: 83 Or. 687,163 P. 434
• Parties: WICKS v. METCALF ET AL. [a1]
• Court: Oregon Supreme Court

163 P. 434

83 Or. 687

WICKS v. METCALF ET AL. ^[a1]

Supreme Court of Oregon

March 6, 1917

Department 1.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Suit by Ida May Wicks against H. K. Metcalf and another. From decree for plaintiff, defendants appeal. Reversed.

This is a suit to enjoin the prosecution of a certain action at law as against the plaintiff. From the allegations of the complaint it appears that on March 15, 1912, Joseph Wicks husband of plaintiff Ida May Wicks, was indebted to defendants in the sum of $1,238.53, and on that day the defendants asked Wicks to secure the debt by giving them his promissory note therefor, secured by a mortgage on certain real estate then owned by him, and at that time plaintiff and her husband did execute and deliver to defendants such mortgage. These recitals are followed by the following paragraphs:

"That at the time of the execution of said mortgage the plaintiff was informed by the defendants and believed that in order to make good the security aforesaid it would be necessary for the plaintiff to sign said promissory notes as well as said mortgage; and plaintiff relying on the representations of said defendants, and not otherwise, that the execution of said promissory notes was simply for the purpose of making valid the security aforesaid, executed said promissory notes along with her said husband, Joseph Wicks and the same was delivered to the defendants. That the said representations on the part of the defendants were falsely and fraudulently made for the purpose of misleading and deceiving the plaintiff herein, and for the purpose of inducing the plaintiff thereby to become liable in her separate estate for the said indebtedness evidenced by said promissory notes.

"That at said date and prior thereto the plaintiff was not indebted to the defendants in any sums whatever and is not now so indebteded, and never at any time agreed or consented to assume to pay any of said indebtedness of Joseph Wicks; and the execution by the plaintiff of the said promissory notes was without any consideration whatever, and the plaintiff on account of said false and fraudulent representations was induced to execute the same and never at any time believed and intended that said transaction should in any wise bind the plaintiff to pay any portion of said indebtedness.

"That on the ______ day of ______, 1914, the defendants commenced an action in this court against this plaintiff and said Joseph Wicks upon said promissory notes and has caused an attachment to be issued in said action, and the sheriff of Lane county, Ore., has filed in this court a certificate of attachment to the effect that he has attached the real property of this plaintiff as security for whatever judgment may be obtained in said action."

The complaint concludes with a prayer for a decree perpetually enjoining defendants from levying upon or selling plaintiff's property in said action, and decreeing that she is not liable upon the notes. From a decree in favor of plaintiff, defendants appeal.

Fred E Smith, of Eugene (J. E. Young, of Cottage Grove, on the brief), for appellants. E. O. Potter, of Eugene, for respondent.

BENSON J. (after stating the facts as above).

Appellants contend that the amended complaint does not state facts sufficient to constitute a cause of suit, and we think that this position is well taken. The plaintiff admits that she signed the promissory notes, and there is no hint in the pleading that she did not clearly understand their meaning and import. The substance of the allegation is that the defendants represented to her that it would be necessary for her to sign the notes as well as the mortgage in order to make good the security; that such representations were false and made for the purpose of deceiving her; and that she relied upon them and signed the notes. In other words, she inferred from what defendants told her that the act of signing the notes would not as a matter of law make her personally liable for her promise to pay. The authorities are practically uniform in their conclusion that such representations, even though false, do not afford any ground for relief. Upton v. Tribilcock, 91 U.S. 45, 23 L.Ed. 203, was a case wherein a subscriber for shares of stock in a corporation sought to avoid payment of a balance upon his subscription, because it was obtained by the false representations of an agent of the corporation, to the effect that he would only be liable for 20 per cent. thereof, which he had already paid. In this case Mr. Justice Hunt says:

"That a misrepresentation or misunderstanding of the law will not vitiate a contract, where there is no misunderstanding of the facts, is well settled."

In Fish v. Cleland, 33 Ill. 243, cited with approval in Upton v. Tribilcock, supra, we find the following:

"A representation of what the law

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