108 N.W. 549 | N.D. | 1906
This action was brought to recover the sum of $1,000 paid by the plaintiff upon a contract for the sale of 960 acres of real estate, which the plaintiff claims was subsequently rescinded by him on the ground that the defendant procured the contract to be entered into by the plaintiff through fraudulent representations as to defendant’s title to part of the land involved in the contract. The material parts of the contract are as follows: That the said Frank H. Burnham, * * * being the owner in fee simple of the following-described property, * * * does hereby agree, bargain, and sell the said Benjamin H. Annis the above-described property on the following conditions, viz: The said Frank H. Burnham to receive for said lands above described, including improvements, the price of eighteen ($18.00) dollars per acre, in other words, 960 acres at the net figure of seventeen thousand two hundred eighty ($17,280.00) dollars to be paid by the said Benjamin H. Annis to the said Frank PI. Burnham in amounts
The specifications of error relate to (1) rulings refusing an offer of testimony to prove that the written contract was changed by the subsequent oral contract pleaded in the complaint; (2) the refusal of the trial court to instruct the jury that the plaintiff had a right to rescind the contract as a matter of law, on March 1, 1903; (3) in refusing to instruct the jury as a matter of law that the plaintiff had not waived the right to rescind the contract.
It is claimed that the contract was entered into by plaintiff through fraudulent representations on' the part of the defendant which rendered the contract void. It is true that the defendant was not the owner of all the land represented in the contract to be owned by him. It is also true that the plaintiff did not know
It is finally insisted that defendant was in default under the contract on March 1, 1903, and that plaintiff then demanded a deed and demanded payment to him of the $1,000 previously paid on the contract, and that he is therefore entitled to recover the $1,000. The basis of this contention is that plaintiff claims that he tendered $4,000 at that time, and that defendant refused to deliver a deed, and thereby became in default. There are two conclusive answers to this contention: (1) The plaintiff did not tender the $4,000. (2) The contract does not provide for the delivery of the deed upon payment of the $4,000. Upon the subject of the alleged tender of the $4,000, it need only be said that the evidence does not even show a readiness or willingness
Upon a careful review of the evidence we are satisfied that no error is shown by the record. It follows that the judgment must be affirmed.