51 Minn. 300 | Minn. | 1892
This was an action for the rescission, on the ground of fraud, of an executed contract, by which plaintiff exchanged cer
Plaintiff made the trade with defendant Fisher as principal, but in fact Fisher was acting in behalf of the Cremers, and immediately transferred all the proceeds of the transaction to Mrs. Cremer. From an examination of the evidence, we are perfectly satisfied that it fully justified all the material findings of fact of the trial court. The case abounds in evidence, both direct and circumstantial, that Fisher perpetrated an intentional fraud on plaintiff, and that defendant William J. Cremer aided and abetted it. Without taking into account any other acts or representations, Fisher’s misrepresentation to plaintiff as to the location of the property which he proposed to trade to him • was of itself sufficient to entitle plaintiff to a rescission. Plaintiff was unacquainted with plats or the location of property in the vicinity of St. Paul. Fisher professed to take him out upon the ground, and point out the property which he proposed to turn out in the trade, but, in fact, as the court finds, fraudulently pointed out other property, differently located. Fisher’s proposition was to convey to plaintiff a certain number of lots, and to transfer to him a mortgage upon a certain number of other lots; and, when they went out on the ground to see the property, Fisher did not point out any particular lots, but merely professed to point out the general locality where they were situated, and when they returned to the city plaintiff himself made the selection of the specific lots from the plats.
Considerable point is attempted to be made of this,1 as showing that Fisher’s representations were neither material nor relied on, and that plaintiff, when he made the selection from the plats, knew exactly what property he was getting. But we fail to see why the representation as to the locality where the lots were situated was not material, if relied on by plaintiff in making his subsequent selection; nor do we see how an inspection of the plats would inform him of the falsity of Fisher’s representation as to the actual location of the lots on the ground.
It is also urged that plaintiff was guilty of negligence in not availing himself of the means at hand of examining the property, and
As between the original parties, one who has intentionally deceived the other to his prejudice ought not to be heard to say, in defense, that the other party ought not to have trusted him. Maxfield v. Schwartz, 45 Minn. 150, (47 N. W. Rep. 448.)
Neither does the record furnish any warrant for the claim that plaintiff himself was attempting to perpetrate a fraud on-Fisher, or, to use the language of counsel, that it was a case of “diamond cut diamond,” and therefore plaintiff ought not to be granted any relief. The only foundation for any such charge is that plaintiff, in view of the fact that he was contemplating trading his property for other property upon which “trading” prices would probably be put, placed trading prices upon his own property largely in excess of its actual value as found by the court. But his property was all in sight; its location, description, and character equally well known to both parties; and no fraud, legal or actual, could be predicated upon the mere fact that trading prices were placed upon it.
The Cremers in their answer alleged that they “had parted with the greater portion of the personal property received from the plaintiff,” and hence were not in condition to restore it. Upon plaintiff’s having executed and brought into court a reconveyance of the land, and a reassignment of the mortgage which he had received, the court ordered that the Cremers reeonvey to him the real estate which he had conveyed to Fisher, and that he have judgment against the Cremers for the value of the personal property, and of the use of the real property during the time they had possession of it. The rendition of this money judgment for damages or compensation, whichever it be called, is also assigned as error.
If the proper foundation be laid in the pleadings and proof, there can be no doubt that, in actions of this class, as for rescission or specific performance, the court may grant the distinctly equitable relief, as far as can be done; and also, if full relief of this kind has become
The allegations of the complaint were probably insufficient in that regard, but the allegation in the answer, already referred to, in part supplied this defect; and upon the trial the matters of the value of the personal property, and of the use of the real property, were gone into, and evidence on those questions admitted without objection.
We have repeatedly held that this amounts to a consent to try an issue, although not made by the pleadings. The assignments of error are quite numerous, but this covers all that we find in them of sufficient importance to call for special consideration.
Judgment affirmed.
(Opinion published 53 N. W. Rep. 638.)
