| N.D. | Jul 18, 1920
The plaintiff brought this action to rescind a certain transaction whereby she agreed to convey to the defendant Tallmadge certain lands in Billings county in exchange for a residence located in Cooperstown in this state. The transaction was negotiated through one Grassinger. One of the controverted questions is whether Grassinger was Tallmadge’s representative, or whether he acted for tha plaintiff. The plaintiff -claims that she was induced to make the deal through false and fraudulent representations. During the course of the trial she testified to certain representations in addition to those set forth in the complaint; and upon motion of her attorney she 'was permitted to serve and file an answer to conform to the proofs. The trial court, in a memorandum opinion, intimated that he was of the opinion that plaintiff had been defrauded, but that, on account of her failure to preserve the property she received from the defendant in exchange, a rescission could not be had. The findings of fact are, however, in favor of the defendant upon all material points.
A careful consideration of the evidence leaves us very much in doubt as to what disposition should be made of the case. Upon many features the evidence is quite unsatisfactory as viewed from the standpoint both of the plaintiff and of the defendant. It also seems clear that both parties are or will be in position to adduce additional evidence which will clarify the situation. Upon the record presented, we do not feel justified in reversing the judgment, nor do we feel justified in affirming
It is therefore ordered that the case be remanded for a retrial. All costs, including the costs of this appeal, will abide the result of the final judgment.