156 P. 122 | Mont. | 1916
delivered the opinion of the court.
• This action was brought by plaintiff to recover of the defendant the sum of $469.91, with interest from September 14, 1912, alleged to be a balance due upon a promissory note for $700 executed by the defendant to plaintiff on August 30, 1910, payable within two years thereafter. Defendant admitting the execution of the note, alleges as a defense and counterclaim substantially the following: That on or about August 30, 1910, the plaintiff represented to defendant that he had for sale a relinquishment of a homestead entry by one Alice Nelson upon a quarter section of public land of the United States in Fergus county, which he agreed to sell to the defendant for $1,200; that defendant, relying upon the representations thus made by plaintiff, agreed to pay him for the relinquishment this sum; that the plaintiff and the defendant went to the office of one Leon S. Thurston, United States Commissioner at Stanford in Fergus county, and had certain papers executed which plaintiff represented to defendant to be a relinquishment by Alice Nelson and a homestead filing by the defendant upon the said land; that he thereupon executed and delivered to plaintiff two promissory notes, one for $500 due and payable on or before September 30, 1910, and a second for $700, the one upon which this action was brought; that according to the terms of the agreement the plaintiff paid the full amount of the first note and made two payments on the second, viz., $233.78 on December 1, 1911, and-$100 on September 14, 1912; that the representations so made by the plaintiff were false; that the notes were without consideration because the land was at the time unsurveyed public land not subject to homestead entry under the laws of the United States, and so remained for a long time thereafter, all of which plaintiff knew but the defendant did not know; that all the payments to plaintiff were made before defendant learned that plaintiff’s representations were false; that plaintiff did not -in fact have a relinquishment from Alice Nelson; and that by these false and fraudulent representations whereby defend
The relief sought by the defendant is in effect a rescission of the agreement under section 5065 of the Revised Codes. It is insisted by counsel that the court erred in refusing to direct a verdict for plaintiff, on the ground that the defendant does not allege in his answer, nor does the evidence disclose, that he restored or offered to restore to the plaintiff everything of value received from him under the agreement. We shall not stop to consider the sufficiency of the pleading. Assuming that it alleges sufficient to warrant relief, in our opinion the evidence wholly fails to make a case under the statute. When not effected by consent, rescission may be accomplished by observance by the party seeking it, of these requirements: “ (1) He must rescind promptly, upon discovering the facts which entitle him to rescind, if he is free from duress, menace, undue influence, or disability, and is aware of his right to rescind; and (2) he must restore to the other party everything of value which he has received from him under the contract, or must offer to restore the same, upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do so.” (Section 5065, swpra.)
There is a conflict in the evidence as to whether the subject of the negotiations resulting in the agreement was understood
As we have already said, the defendant after discovery of the fact that he had acquired merely a possessory right on unsurveyed land instead of a right to make immediate entry, elected to retain such right as he did acquire. He is therefore not entitled, under section 5065, supra, to have the agreement rescinded.
The judgment is reversed and the cause remanded, with directions to the district court to enter judgment for the plaintiff.
Reversed and remanded.