221 P. 540 | Mont. | 1923
delivered the opinion of the court.
The complaint alleges that the plaintiff entered into an agreement with the defendants to purchase two corner lots in block 6 of the Montrose addition to the city of Butte; that in order to induce the purchase defendants falsely represented to plaintiff that lots 3 and 4 in block 10 “were corner lots on the northwest corner of Diamond and Emmet Streets” in the Montrose addition; that, with intent to defraud the plaintiff, the defendants caused to be inserted in the written contract between them lots 3 and 4 in block 10, which were not comer lots, as plaintiff believed; that afterwards she discovered that the lots inserted in the contract were not the lots she bargained for, but were undesirable for a homesite, and worth $300 less than the corner lots she intended to buy; that immediately upon discovering the misrepresentation and fraud so practiced upon her, she notified the defendants that she elected to rescind and cancel the contract and offered to restore to defendants everything of value received thereunder and to do equity in the premises.
The defendants filed a general demurrer to the complaint, which was overruled. Mrs. Dobry, individually and as administratrix, then filed an answer denying all the allegations of the complaint. The cause was tried without a jury. Upon the evidence adduced the court found that prior to the making of the written contract, defendant represented that she would sell plaintiff lots 31 and 32 in block 6; that plaintiff did not know the description of the lots, but did know that the lots she desired were situated at the northwest corner of Diamond and Emmet Streets; that defendant agreed to have the proper lots inserted in the written contract and deed, but instead in
Appellant’s counsel urge that the pleadings and the evidence show that plaintiff’s remedy was reformation and not rescission under the terms of section 8726, Revised Codes of 1921; (2) that plaintiff has not offered to do equity; and (3) that she is guilty of laches and neglect.
The defendants offered no evidence. The plaintiff’s proof was that neither Mrs. Campana, Father Franehi nor Mrs. Dobry knew the numbers of the lots which were the subject of bargain. Father Franehi testified that when he interviewed Mrs. Dobry for Mrs. Campana no lots, other than corner lots, were discussed between them, and that Mrs. Dobry then told him that she did not know the numbers of the lots the plaintiff wanted. Mr. Thomas J. Davis, the attorney and agent of Mrs. Dobry, testified that he did not know the numbers of the lots intended to be sold when he drew the contract, but learned the description from Mrs. Dobry later and at her suggestion wrote in lots numbered 3 and 4 in block 10. The court was justified in finding upon this evidence that the plaintiff intended to buy corner lots; that defendants so understood, but, “with intent to defraud the plaintiff,” Mrs. Dobry caused the wrong lots to be written in the contract.
The allegations charging the particular act of fraud are in accord with the rules of pleading laid down by this court, and sufficiently apprised the defendants of the case they would have to meet upon the trial. (Post v. Liberty, 45 Mont. 1, 121 Pac. 475; Connelly Co. v. Schlueter Bros., ante p. 65, 220 Pac. 103; Healy v. Ginoff, ante, p. 116, 220 Pac. 539.)
Furthermore, the defendant offered no evidence to rebut the plaintiff’s proof; nor did she see fit to deny the statement of Mr. Davis, that the number of the lots incorporated in the contract were furnished by her, but contented herself with standing on the insufficiency of the complaint to entitle the plaintiff to rescind the contract, and the legal defenses of laches and negligence, thus affording another “illustration of the common-sense rule that, unless there is a want of substance in the complaint upon the particular issue involved .and a failure of proof in consequence, a ease should not be reversed at the instance of a defendant who has not been deprived of a substantial right.” (Davis v. Freisheimer, 68 Mont. 322, 219 Pac. 236; see, also, Weibush v. Jefferson Canal Co., 68 Mont. 586, 220 Pac. 99.)
Section 7565, Revised Cides of 1921, gives the right to re- scind when consent of the rescinding party was given by mistake, or obtained through duress, menace, fraud or undue influence, or through the fault of the party as to whom he rescinds. Under section 8726, when through fraud or mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected, a written contract does
Was the plaintiff guilty of laches and neglect? Appellants contend that the evidence discloses that the abstract was in the hands of the plaintiff for a period of two years before she complained of the fact that the wrong lots had been inserted in the contract, and was therefore guilty of such laches and neglect as would defeat any right she might have.
The testimony was that immediately upon discovering that inside lots had been written into the contract instead of the corner lots the plaintiff had bargained for she requested Father Franchi to call on Mrs. Dobry and induce her to substitute lots 31 and 32 in block 6, the corner lots agreed upon, for lots 3 and 4 in block 10, and offered to return the contract and everything else she had received in the transaction. Father Franchi testified that at plaintiff’s request he made a special trip to Butte and called upon Mrs. Dobry, told her that lots 3 and 4 in block 10 written in the contract were inside lots and not the corner lots they had agreed were to be conveyed to plaintiff, and that in response to his demands she said, “You can go home and I’ll fix it.” Frank McKay, who lived near the premises, testified that he had been in the employ of Mrs. Campana for a number of years, and that at her request he had kept the sidewalks surrounding lots 31 and 32 clear of snow and ice during the winter, and in other seasons removed
Under the conditions presented, the rule laid down in Wilcox v. Schissler, 55 Mont. 246, 175 Pac. 889, seems to be peculiarly applicable. There it was held: “In ordinary business transactions parties are expected and required to use reasonable care and prudence, and not rely upon those with whom they deal to care for and protect their interests. (Grindrod v. Anglo-American Bond Co., 34 Mont. 169, 85 Pac. 891.) But, as said by Justice Oassoday, in Warder etc. Co. v. Whitish, 77 Wis. 430, 46 N. W. 540: ‘Certainly no one will contend that a person can procure the signature of a party to a contract by false representations, and then enforce the contract on the ground that, had the party so deceived been more vigilant, he would have discovered the fraud in time to have withheld his signature from the contract. In other words, a person cannot procure a contract in his favor by fraud, and then bar a defense to it on the ground that, had not the other party been so ignorant or negligent, he could not have succeeded in deceiving him.’ ” (See, also, Como Orchard Land Co. v. Markham, 54 Mont. 438, 171 Pac. 274, where many cases are cited to the same effect.)
Finding no error in the record, the judgment is affirmed.
Affirmed.
