208 N.W. 8 | Minn. | 1926
Plaintiff moved that the answer be stricken as sham, basing the motion on his affidavit, which consisted in part of a denial of the making of the representations alleged, and in part of the following allegations of new matter: That, before the sale was made, Kaas and the defendant in plaintiff's presence went all over the farm and spoke to plaintiff about small patches of quack grass and stone they saw, and about the condition of the tile outlet which they examined and thought insufficient; that an allowance of $100 was made to improve it and 200 tiles given to them with which to do additional tiling; that in the fall of 1919 they took possession and plowed the land; that Kaas lived on the farm for three years; that during the next five years he and the defendant saw the plaintiff frequently but made no complaint until the spring of 1923, when they requested him to take the farm back because they were unable to pay for it and that they conveyed it to him without mention of any misrepresentations; that on February 27, 1924, defendant executed the note in question without intimating that plaintiff had been guilty of fraud or misrepresentation; that, after the farm was reconveyed to plaintiff, Kaas leased it from him and remained in possession until the fall of 1923.
A sham pleading may be stricken although it is verified. Dun. Dig. § 7660. When a party to an action moves that a pleading be stricken as sham, it is for the court to determine whether the *362
pleading raises an issue to try, not to try the issue. O'Donnell v. Lesselyoung,
If the affidavits in support of the motion make a prima facie case of the falsity of the pleading, the motion will ordinarily be granted unless the showing is met by counteraffidavits or other form of proof, free from evasion, which make it clear that there is an issue to be tried, and a showing of bad faith is not necessary. Bank v. Sheasgreen,
We think the defendant was called upon to deny or explain the new matter set out in plaintiff's affidavit and that his failure to file a counteraffidavit must be taken as an admission of the truth of plaintiff's statements. If plaintiff made the representations and they were false, defendant must have known all about it long before he gave the note upon which suit is brought. True, he is not seeking to rescind the contract for the purchase of the farm. He affirms it and pleads a cause of action at law for damages for the alleged fraud. His cause of action, if one he has, is not barred by the statute of limitations, but these facts are not enough to require a reversal. It is contrary to human experience to suppose that a man in defendant's position would not have discovered the falsity of most of plaintiff's alleged representations as early as the fall of 1919, when the land was plowed, and the falsity of the others when the crops were grown in the summer of 1920. If defendant had been deceived as grossly as he says he was, he would almost certainly have made complaint to plaintiff before the year 1921. It is highly improbable that he would have gone on making payments under the contract, or that he and Kaas would have asked plaintiff to take back the farm because they could not pay for it. It is equally improbable that he would have renewed a note given for *363 part of the purchase price after the farm was reconveyed to plaintiff and after he must have had full knowledge of the deception he now brings forward as a defense to the note. The allegation that the alleged fraud was not discovered until the summer of 1924 is beyond belief. The uncontroverted statements in the affidavit, which, for the purposes of the motion, must be taken to be true, when shown at a trial, if one were had, would require the court to direct a verdict in plaintiff's favor, hence plaintiff has made a fair showing that the issue tendered in the answer is not one which defendant has a right to have tried or submitted to a jury.
Order affirmed.