225 P. 144 | Idaho | 1924
— This is a suit in equity to cancel a deed to certain premises in Burley, Idaho, used as an apartment bouse, a note for $8,000 and an assignment of a contract of purchase of a section of school land in Utah, all of these instruments having been executed by appellant to respondent as a consideration for the purchase price of an undivided half interest in and to a gravel pit situate near Ogden, Utah. The grounds alleged for the cancelation of these instruments are misrepresentation and fraud on the part of respondent inducing the execution of these instruments on the part of appellant. The action appears to have been tried upon a second amended complaint and the answer of respondent thereto, it having first demurred generally and specially to this complaint. The special grounds were that it was uncertain, and that it was ambiguous because it failed to allege that appellant had received anything of value for the execution of these instruments sought to be canceled, and if he had so received value for their execution, he had failed to tender a return of such consideration or to give any reason for not returning the same before he demanded a rescission of the instruments executed on his part as a consideration for such conveyance to him.
After the taking of the testimony had begun appellant asked leave to file a third amended complaint, the purpose of which was to avoid some of the objections raised to the second amended complaint by the demurrer. To this application to amend respondent objected, and the court denied permission to file the third amended complaint. A jury was impaneled in the trial of said cause and to it was submitted special interrogatories upon which it returned findings. The court then made findings of fact and conclusions of law therein which were in favor of respondent company. Upon these findings and conclusions a judgment was entered that appellant take nothing by reason of his
Appellant makes numerous assignments of error, that the court erred: (1) in refusing to permit the third amended complaint to be filed; (2) in denying the motion for directed verdict; (3) in submitting the special interrogatories to the jury; (4) in instructing the jury; (5) in adopting certain findings made by the jury; (6) in finding that appellant was not defrauded or did not tender back the property received from respondent; (7) in finding that the contract between the parties providing for this transfer of property was a valid and subsisting contract; (8) in overruling the motion to set aside the special findings and in entering judgment against appellant.
Before the cause was argued in this court respondent moved to strike from the transcript on appeal pages 98 to 153, inclusive, which comprise the reporter’s transcript, on the ground that the same had not been settled in accordance with C. S., sec. 6886. An inspection of the record shows that this transcript has never been settled by the trial judge as this statute requires. It is contended that this part of the record should not be stricken because of a stipulation entered into, wherein the respective counsel waived the service of notice to settle the reporter’s transcript upon appeal, in order that the plaintiff and respondent might file the same with the clerk of the supreme court within the period required by the rules of this court, and that if errors were thereafter discovered on appeal before argument of the cause a bill of exceptions might be served on either of the respective parties and such errors corrected if they appeared in said record. This stipulation is not sufficient to waive a compliance with subdivision 3 of C. S., sec. 6886, which requires the judge who tried the case to
Upon examination of the judgment-roll it appears that the jury found that the representations made by appellant were false but were not knowingly and fraudulently made by respondent. In answer to interrogatory three the jury found that appellant was not defrauded by relying upon respondent’s representations. This being an equity cause the jury were acting only in an advisory capacity and the court was not bound by its findings of fact. The court further found that respondent did not knowingly or fraudulently represent to appellant, for the purpose of inducing him to enter into the contract, which he seeks in this action to rescind, and did not knowingly or fraudulently represent the other matters set out in the second amended complaint, and that appellant was not defrauded by reason of having relied upon such representations, and that respondent did not obtain possession of appellant’s property by knowingly and fraudulently making false representations to appellant; that while appellant requested and demanded of respond
The court further found that the contract entered into between said parties in consummating this trade was a valid and subsisting contract and binding upon both parties and that there could be no rescission of the same. As a conclusion of law from these findings the court held that the contract or transfer between the two parties was valid and binding upon both parties and could not be rescinded and •that appellant should take nothing by reason of this action to rescind. These findings and conclusions support the judgment.
On an appeal from a judgment or from an order denying a motion for a new trial, where no bill of exceptions has been settled and allowed as provided by C. S., sec. 6882, nor any reporter’s transcript settled and allowed as provided by C. S., sec. 6886, and brought to this court, it cannot review the question whether the findings of the court are sustained by the evidence but must assume that there was evidence before the trial court to warrant'the findings made. (Keller v. McCarty, ante, p. 18, 219 Pac. 1063; Bergh v. Pennington, 33 Ida. 726, 198 Pac. 158; McCormick v. Brown, 22 Ida. 52, 125 Pac. 197; Zion's Co-op. Merc. Co. v. Armstrong, 6 Ida. 464, 56 Pac. 168; Jones v. Quayle, 3 Ida. 640, 32 Pac. 1134; Hazard v. Cole, 1 Ida. 276.)
The refusal of the court to permit the filing of the third amended complaint, after the trial had begun, wherein appellant sought to meet the objections made to the second amended complaint, was not error in this case. Courts should exercise a liberal discretion in permitting pleadings to be amended, even to the extent of permitting amendments after the evidence has been submitted, where amendment is necessary to make the averments of the pleadings conform to the evidence, and where such evidence is relevant
The judgment of the court below is affirmed, with costs to respondent.
