140 Minn. 292 | Minn. | 1918
This action was brought for the rescission and cancellation of an exec-utory contract for the sale and exchange of certain lands owned by the respective parties, and to recover payments made thereon by plaintiffs, on the ground that the contract was induced and brought about by the fraudulent representations of defendant as to the condition and fitness for agricultural purposes of the land to be conveyed by him to plaintiffs. On the trial below issues were framed and submitted to a jury, all of which were answered in favor of plaintiffs. Additional facts were found by the trial court, and judgment was ordered for plaintifEs for the relief demanded in the complaint. Defendant appealed from an order denying his motion for judgment or a new trial.
It may be conceded for the purposes of the case, without stopping to consider the question, that the evidence made the issue of fraud and fraudulent representations one of fact for the jury, and that the verdict thereon is sufficiently supported by the evidence presented by plaintiffs. But that does not dispose of the case. The action is to rescind the contract and to recover back what was paid thereon and, though the fraud be conceded, the undisputed evidence makes it clear that the right of rescission was waived by plaintiffs by their failure to repudiate the contract promptly and within a reasonable time after discovering the alleged fraud. The law on this subject, and as applied to actions of this kind, is well settled, and requires prompt action by the party seeking such relief, and a delay for an unreasonable time, will amount to an affirmance of the contract and bar the right to rescind. Parsons v. McKinley, 56 Minn. 464, 57 N. W. 1134; Marshall v. Gilman, 47 Minn. 131, 49 N. W. 688; Weller v. Minnesota L. & C. Co. 87 Minn. 227, 91 N. W. 891.
In this ease the alleged fraudulent representations had to do with the condition and character of the land for agricultural purposes, and were to the effect that the soil was black loam, that the land had good natural' drainage, was within a mile of a school house, and entirely free from foul weeds. The land was examined by plaintiffs before the transaction was completed, but that occurred in the month of December, and at a time when the condition of the land as to soil, or the presence or absence of foul weeds, 'could not well be ascertained. The transaction was com
There is no sufficient explanation of the failure of plaintiffs promptly to repudiate the contract upon the discovery of the fraud, nor of their conduct in thereafter retaining control of the land and renting it for the cropping season of 1916. In view of which it must be held that plaintiff waived the right to rescind the transaction. Straabe v. Jackson, 134 Minn. 179, 158 N. W. 915.
It is not a case for final judgment. The result is not a bar to a recovery of damages for the fraud, if any was committed by defendant. Marshall v. Gilman, supra. It will be within the discretion of the court below, after the cause has been remanded, to grant an amendment of
The order denying a new trial is reversed.