93 Va. 518 | Va. | 1896
delivered the opinion of the court.
The lien for $2,796 arose in this way: Hudson had taken certain shares of stock in the Association, and had borrowed money from it; and, to secure its repayment, he had executed deeds of trust which stipulate that he should pay to the Association instalments amounting to $51 each month “until such time as the shares of stock shall be fully paid up, or for the period of eighty-four months, if said stock does not become fully paid up before the expiration of that time.”
The purchase was made by Waugh through F. W. Craig and C. E. Moore, the agents of the vendor, J. P. Hudson, and the bill charges that these agents represented that $2,796 was the entire amount due by Hudson to the Old Dominion Building and Loan Association, and that when that sum was paid in monthly instalments of $51.00 each, the lots would be free from all encumbrance.
It further appears that the notes for $2,804, executed by Waugh, were discounted by him and paid before maturity, so that the only part of the purchase price of the lots which now remains unpaid is the sum due the Building Association.
About the month of June, 1892, Waugh discovered, as he avers, that by the deeds of trust from Hudson to the Building Association, the lots were bound for about the sum of $4,181, instead of the sum of $2,796, which he had assumed; and he now claims that he was induced to enter into the
To this bill Hudson filed an answer which admits the purchase of the lots and the assumption by the complainant of the sum of $2,796 to the Building and Loan Association, and admits also that the sum stated in the bill as due to the Building Association, at the time of the sale, is very nearly the correct amount, including loan, interest, and dues on stock, and claims that the difference between the sum assumed by appellee and the sum claimed by him as actually due to the Building Association, amounting to $1,288, is made up of $400 interest accruing upon the $2,796, and that the balance of $800 would be applied to the payment of the stock in the Old Dominion Building and Loan Association, which was transferred to the complainant. The answer avers that the real agreement between the complainant and respondent was that the houses and lots should be conveyed to the complainant, and the interest in the Association should be transferred to him, and the complainant
Upon the issues thus made, proofs were taken, from which it appears that the consideration for the purchase of the lots was as stated in the bill.
It further appears-that Waugh did not content himself with the representations as to the condition of the title, and the amount of the outstanding encumbrances upon the property he was about to purchase that were made to him by Craig and Moore, the agents of the vendor, but that he declined to complete the negotiations until the title was reported upon by Mr. Pendleton who corroborated the representation made by Craig, fixing the outstanding encumbrances at $2,796.
It appears that the deeds by which the sums to the Building Association were secured were of record; that they disclosed the whole nature and character of the transaction between Hudson and the Building Association, and, if examined by Waugh, would have informed him fully as to the extent of the liability resting upon the property.
There is evidence which is strongly persuasive that he did actually see and inspect these deeds. Hot to have done so, and to have relied wholly upon the representations of his vendor and his agents furnishes an unusual example of negligence and credulity. It was about a year after the transaction that the appellee admits that he became aware of the existence of an incumbrance upon the property greater than that which he had assumed, but, even after he
It appears that, at the time of the transaction, these four houses were renting for the aggregate sum of $72 per month, and that after the lapse of a short time the rent fell off to $64 per month, and then to $60 per month, and continued to decline until the rents only amounted to $43 per month.
The controversy between the appellant and the appellee turns upon the time within which the shares of the Building and Loan Association shall mature. The sum of $2,796 assumed by the appellee is predicated upon the maturity of the shares of the Association in about fifty-five months. If they should mature within that time, then the obligation of the vendee would be precisely as fixed by his contract. Those shares may, perhaps, mature in a less period than fifty-five months, and, in that event, the encumbrance upon the property would be satisfied by the payment of a less sum than was contemplated by the appellee in his contract, or a greater length of time than fifty-five months may be r¿quired, in which event a sum greater than $2,796 would be necessary to satisfy the demands of the Building and Loan Association; but, in no event, could its demands extend beyond the payment of eighty-four monthly instalments, that being the limit of the obligation imposed by the deeds of trust for the benefit of the Building Association. Whether the shares shall mature within a longer or shorter period depends upon the profits of the business conducted by the Association. The evidence does not satisfactorily show at what period the shares in question may be expected to mature. While, therefore, there is a limit which the liability to the Building Association cannot exceed, it is not certain that there will be any responsibility imposed upon the appellee in excess of the amount assumed by him, or, if any, just how much it will be. These are the material facts to be considered in determining this controversy.
“A party who intends to repudiate a contract on the ground of fraud should do so as soon as he discqvers the fraud; for if, after the discovery of the fraud, he treats the contract as a subsisting contract, or if, in the interval, whilst
This duty is perhaps, more imperative in the case of a mutual mistake. In Simmons v. Palmer, decided at the present term, ante p. 389, it is said: “The application for relief in such cases, upon the ground of mistake, must be made with due diligence, and what constitutes due diligence is to be determined by reference to the facts attending the particular case in judgment. The diligence required should he proportioned to the injurious consequences likely to result from delay.”
It is difficult to resist the impression that the decline in the value of the property, as shown by the constantly diminishing rents, constituted the motive for demanding a rescission of this contract. Had the rents derived continued to be sufficient, and more than sufficient, to meet the monthly accruing instalments, it is probable that this controversy would never have arisen. It was only when the rents had fallen to $43.00 per month, $8.00 per month less than the demand of the Building Association for the same period, that the appellee determined to repudiate the contract, and instituted proceedings for its rescission. He had no right thus to delay and throw upon the appellant the burden resulting from a depreciation of the property. Had he acted promptly, and disaffirmed the contract as soon as he discovered the fraud or mistake of which he claims to have been a victim, it may be that the appellant could have averted, or, at least, have diminished the loss attending its repudiation.
As was said by Earl, J., in Thomas v. Bartow, 48 N. Y.
Under the circumstances of this case, we do not think that the appellee is entitled to the relief afforded him by the decree appealed from, which must be reversed, and this court will enter such decree as the Hustings Court of the city of Roanoke should have entered.
Reversed.