167 P. 308 | Or. | 1917
delivered the opinion of the court.
“Fraud renders the contract voidable at the option of the injured party and entitles him to rescission of the same at law so long as it is executory.”
In 39 Cyc. 1997 it is said:
‘ ‘ One who has been induced by fraudulent representations to become the purchaser of property has, upon the discovery of the fraud, three remedies open to him, either of which he may elect: He may rescind the contract absolutely and sue in an action at law to recover the consideration parted with upon the fraudulent contract ; he may bring an action in equity to rescind the contract and in that action have full relief; lastly, he may retain what he has received and bring an action at law to recover the damages sustained. ’ ’
Plaintiff in this case has elected to pursue the first of these remedies. Her right to do so is recognized by Warvelle on Vendors, § 918; Mael v. Stutsman, 60 Or. 66, 69 (117 Pac. 1093); Koehler v. Dennison, 72 Or. 362, 366 (143 Pac. 649); T. B. Potter Realty Co. v. Breitling, 79 Or. 293, 305 (155 Pac. 179).
“It is not necessary that the plaintiff should prove that all the representations she claims were made and were false. It is sufficient if she proves that a single one of such representations was made and that it was false and that the other elements which will be described to you, were present. However, because of*399 the seriousness of the charge of fraud, the law says that the proof of fraud must be clear and convincing, and you must so find in this ease before you can say that there was fraud.
“Now, in order to constitute fraud there are certain elements which must be established by the plaintiff. You must find, first, that the defendants made the representations, or at least one of them. You must find further that the defendants made those representations for the purpose of circumventing or deceiving this plaintiff. You must further find that the representations were made for the purpose of inducing the plaintiff to act upon them and you must find that the plaintiff did rely and act upon them and was induced by them to enter into the transaction in this case. Then you must find as a further element that the further representations were false, if you find they were made, and you must find either that the defendants knew them to be false or else made them recklessly and with a disregard to the truth or falsity of them, and you must further find that the defendants made them for the purpose of inducing the plaintiff to act upon them as I said before. Now, if you find that there was fraud, as it has been defined to you by the court, then such fraud would justify the plaintiff in rescinding these contracts, plaintiff and her assignor in the second cause of action, and she would be entitled to recover the money which she had paid, or her assignor has paid on account of these contracts, with interest from the dates of payment.”
Defendants complain that this charge permitted the jury to find for plaintiff if in a single respect the representations of defendants were false and fraudulent, even though the departure from the truth was inconsequential. The jury was not authorized under the above charge to find for plaintiff unless it found that the fraudulent representations were the inducing cause of the contracts. This portion of the charge covered the question of the materiality of the representations.
We have patiently examined the authorities cited by counsel for defendants, but it is not considered necessary to review them in this opinion. The questions mooted are for the most part settled by the decisions of this court. We find no error and the judgment is affirmed.
In justice to the defendant Borthwick it should be said that the evidence fails to connect him personally with any of the representations leading up to the execution of these contracts. Aeeirmed.