69 P. 688 | Cal. | 1902
On August 30, 1893, the plaintiffs and defendant entered into a contract in writing by which the plaintiffs agreed to sell to the defendant certain real estate and some personal property thereon for the sum of $12,555, of which sum defendant paid on February 15, 1894, the sum of $6,310, with interest at nine per cent from the date of the contract, the remainder to be paid in three annual payments, to be made on the first day of. January in each of the years of 1895, 1896, and 1897, with interest at six per cent. The other installments remaining unpaid, this action was brought by the plaintiffs to recover them, and a strict foreclosure was demanded. The defendant answered, and also filed a cross-complaint in which he alleged that he was entitled to and had rescinded said contract on August 9, 1898, for fraud on the part of the plaintiffs, and prayed judgment for the sum of $6,910 alleged to have been paid by him under said contract, and certain taxes and interest, less the rental value of said land. The alleged fraud consisted of certain representations alleged to have been made in August, 1893, and afterward. These representations were (1) that the land and personal property were of the value of $12,555; (2) that the yearly income from the fruit grown on said land had been for several years not less than $3,000 per annum; (3) that in said premises were included not less than sixty acres of cultivated land—forty acres thereof in fruit, and twenty acres thereof under cultivation for the raising of hay; (4) that the apples grown thereon had brought and would continue to bring between $1 and $1.25 per box; (5)
1. Appellants contend that the court erred in overruling their demurrer to the amended cross-complaint. This demurrer presented the question whether the cause of action therein stated was barred by the statute of limitations. The contract of sale was made August 30, 1893. The complaint was filed February 5, 1898. Notice of rescission of the contract was given August 9, 1898. The misrepresentation as to the quantity of land under cultivation was not discovered until June, 1898, arid he was then convinced that the representation in regard to the profits represented to have been obtained by the plaintiff, and the reason for the failure of defendant to realize them, were both false and fraudulent. The discovery of the misrepresentation as to the quantity of land in fruit and of that cultivated for raising hay was accidental, and appears not to have been caused by suspicion of the honesty and truthfulness of the plaintiff. Pie knew he had been disappointed in results, but as to said profits he was deceived from year to year by the assurance that his failure to secure them was owing to his want of experience. A party who artfully continues his deception from year to year, and thus prevents an early discovery of his fraud, cannot be heard to insist that his victim is without remedy because he did not sooner discover it. Nor is this the ordinary case for relief upon the ground of fraud, which must be commenced within three years from the date of the fraud, or from the discovery of the facts constituting it. Here the plaintiff who procured the fraudulent contract seeks to enforce its executory provisions, and is thus asking affirmative relief. The statute of limitations does not bar the defendant from objecting to the validity of the contract upon the ground of fraud. “It is not incumbent upon one who has thus been defrauded to go into court and ask relief, but he may abide his time, and, when enforcement is sought against him, excuse himself from performance by proof of the fraud”: Hart v. Church, 126 Cal. 479, 77 Am. St. Rep. 195, 58 Pac. 913. In the same case it was further said: “It is true, as appellant contends, that where a party
2. Appellants contend that the evidence fails to show any fraud on the part of the plaintiffs either before or after the
3. Appellants contend that the court erred in permitting the defendant to amend his cross-complaint to conform to the evidence. There were four of these amendments, each embodied in the order of the court, after the evidence was all submitted. These orders thus made by the court are equivalent to findings of the several facts to which they relate, and the rule relating to conflicting evidence should be applied. We think that each of these amendments was justified by the evidence and that the discretion to grant them was not abused.
4. It is said by counsel for appellants that there is no evidence that Mrs. Evans was guilty of any fraud. The record does not show whether she had any interest in the property other than as wife. She was, however, joined with her husband as plaintiff in the action, and was a party to the contract upon which the action was based, and did not repudiate any of the representations of her husband; nor does it appear that any objection was made in the court below to the judgment upon the ground that she had no interest in the property, and had not been guilty of any fraud.
5. It is contended by appellants that the judgment is unjust, in that defendant is allowed to retain possession of the property, while they are charged interest on the amount of the judgment against them. The judgment, after rescinding the contract and fixing the amount to be paid to the defendant, provides that, upon payment by the plaintiffs ts
The judgment and order appealed from are affirmed.