176 Ky. 399 | Ky. Ct. App. | 1917
Opinion of the Court by
Reversing.
In 1910, Syle Rathchild and Flora Gr. Rathohild, husband and wife, executed and delivered to Eng Schmitt their promissory note, whereby they agreed and promised to pay Schmitt, two years thereafter, the sum of fifteen hundred dollars, with six per cent, interest until paid. Simultaneously with the execution of the note the Rathchilds executed and delivered to Schmitt a mortgage on a certain house and lot on Lampton street, in the city of Louisville, to secure the payment of the fifteen hundred dollars. Thereafter the Rathchilds conveyed the house and lot to appellant, Rector Johns, he -to assume the payment of the fifteen hundred dollar mortgage debt. In October, 1913, appellee, Mary Masterson, a.resident of
On September 9, 1914, Schmitt, who had been unable to collect the money due on his note and mortgage, instituted this action in the Jefferson circuit court against Mary Masterson, Flora Gr. Eathchild, Syle Eathchild and Eector Johns, alleging that the note for fifteen hundred dollars was long past due. and unpaid, and that the same was secured by mortgage upon the house and lot on Lampton .street, then owned by Mrs. Masterson, and prayed a foreclosure and enforcement of his mortgage lien. Thereupon Mrs. Masterson filed her answer and cross-petition in which she alleged that' “Eector Johns came to her residence and store in New Hope, Kentucky, and offered to sell to her the lot of land in the petition described, fronting forty-two feet on the north side of Lampton street, and extending back northwardly the same width ninety-seven feet to Hancock street; that he represented to her that the said property was well improved and was reasonably worth the sum of at least five thousand dollars. ($5,000.00); that it was occupied by white tenants and that it yielded a rental of thirty-four ($34.00) dollars per month, and had done so continuously for a long time prior to said date. ’ ’ She further charged in her answer “That all of said statements so made to her by the defendant, Eector Johns, were fraudulent and untrue, and were known by him to be untrue at the time, 'and were made to her for the purpose of deceiving her and of inducing her to enter into the contract with him,” set out above. She prayed, the court to allow
Rector Johns answered denying that he fraudulently induced Mrs. Masterson to trade with him or that he in any manner overreached or defrauded her in the trade, but alleged the terms of the trade whereby he sold to Mrs. Masterson the house and lot and took her stock of general merchandise in as part pay and retained a lien upon the property for the balance of the unpaid purchase money, which was evidenced by nine (9) several notes, of one hundred dollars each, executed by Mrs. Masterson to him, and that all the said notes were yet unpaid and were, because of the agreement contained in the face of such notes, due and payable, and he sought to enforce his lien against the property for the collection of the said nine (9) notes.
The evidence is rather voluminous and contradictory. The trial court made the following findings and conclusions :
“From the very conflicting evidence in this case the court finds and concludes as follows:
“1. That $5,000.00 was the price asked by Johns for the Lampton street property and that that was the amount which Mrs. Masterson agreed to pay for it.
“2. That the Lampton street property'was reasonably worth at the time of its purchase by Mrs. Masterson the sum of $3,000.00, and no more.
“3. That the stock of general merchandise, fixtures, &e., transferred by Mrs. Masterson to Johns as a part payment of the purchase price of the Lampton street property was of the reasonable market value of $2,000.00, and no more.
“4. That the weight of the evidence on the issue of fraud and over-reaching is in favor of Mrs. Masterson and that she is therefore entitled to relief.
“5. That the total consideration passing from Mrs. Masterson to Johns for the Lampton street property was as follows: Stock of merchandise, $2,000.00; mortgage debt assumed, $1,500.00; notes to Johns, $900.00;
“In view of the foregoing findings the court concludes that the counter-claim of Johns against Mrs. Masterson on the $900 of notes executed by her will have to be dismissed, and that she be awarded a judgment on her cross-petition against Johns in the sum of $500.”
The chancellor declined to cancel the deed from Johns to Mrs. Masterson, but dismissed Johns’ cross-petition against her in which he sought to recover on the nine (9), several notes of one hundred dollars each, and in addition gave Mrs. Masterson judgment over against Johns in the sum of five hundred dollars. This judgment is a radical departure from the contract made by the parties themselves. Prom the evidence in the record we conceive the facts to be that Mrs. Masterson, while conducting her business at New Hope, received ■ information through some friends that Johns was engaged in buying and selling stores, and stocks of merchandise and otherwise trading in real estate and other property, where-, upon she went to Louisville and called upon Johns and made known to him her desire to trade her store, at New Hope, for real property in Louisville. Thereupon Johns took Mrs. Masterson and showed her several different houses, which he proposed to trade to her for her store. None of these houses, howeyer, suited Mrs. Masterson, and she declined to trade. Again she visited Mr. Johns, and he being sick, Mrs. Johns accompanied Mrs. Masterson to look at other property, but this, too, was unsatisfactory and no trade was consummated. After this, Mrs. Masterson again went to Louisville and saw Mr. Johns, and he took her to look at the property in question, located on Lampton street, and the trade complained of resulted. In the meantime, Eeetor Johns had been to New Hope and spent the day with Mrs. Master-son in looking at her store and talking over the trade.
Mrs. Masterson’s chief complaint is that Eeetor Johns made false representations, to her with reference to the location, neighborhood, improvement and occupants of the property; the rent yielded by the property and the value of the property. She complains that the house which she purchased from Johns was located in a negro settlement in Louisville, whereas, he represented to her that it was a white German settlement; that the rents were represented to be thirty-four dollars per month, hut in fact never had exceeded twenty-six dollars per month-; and that the property was worth greatly less
“It is the rule that a party to a contract obtained by fraud has but one election to repudiate or rescind the same. If he once determines his election, it 'is determined forever. Hence, if it is shown that he has at any time, after knowledge of fraud, either by express words, or by unequivocal acts, affirmed, the contract, his election is irrevocable. By clearly manifesting his intention to abide by the contract, he condones the fraud, and is without remedy. He cannot with knowledge of the fraud enjoy the benefits of the contract, and then file an action for deceit. Hartford Life Ins. Co. v. Hanlon, 139 Ky. 346, 104 S. W. 729; Smith v. Lewisport Bank, 27 R. 406.”
It never becomes the duty of a chancellor to make a hew bargain for litigants to conform to what he thinks they should have made. All persons sui juris may trade or dispose of their property at will, and whether the bargain is good or bad does not affect the binding force of the contract. Courts are constituted for the purpose of construing and enforcing contracts, not to make them. If the deed from Johns to Mrs. Masterson was not vitiated by fraud, then the notes should not have been can-celled nor should Mrs. Masterson have .been awarded a judgment for five hundred dollars over against Johns. In this the chancellor was in error. The cross-petition of Mrs. Masterson against Mr. Johns should have been dismissed, and the relief sought by Johns against Mrs. Masterson should have been granted, and upon a return of the case the chancellor will enter a decree in conformity with this opinion.
Judgment affirmed.