90 P.2d 975 | Idaho | 1939
March 31, 1937, appellants contracted to purchase from respondents certain described real property in Jefferson county, together with one hundred fifty inches of water appurtenant thereto. In October, that year, appellants notified respondents they desired to rescind, claiming they had been defrauded as to the amount of land under cultivation and its freedom from morning glory and Canadian thistle. Upon respondents' refusal to rescind appellants instituted this action for rescission resulting, after a trial before the court without a jury, in judgment for respondents rendered by the trial court on these findings:
Fraud will not be presumed and appellants had the burden of establishing all the elements of the fraud alleged by clear and convincing evidence. (Fehr v. Haworth,
Mr. Elser, a prior tenant on the land, testified he told appellants there was some weed infestation but did not state a definite amount and that in answer to appellants' inquiry as to what was the matter with the place he answered "nothing except the morning glory." Other witnesses whom appellants knew were well acquainted with the land, informed him there was a considerable quantity of *266 morning glory on it. Likewise there is evidence to the effect that neither respondents or their agents made positive statements as to the exact amount of land having weed infestation or the exact amount of land under cultivation. There is a dispute as to the amount which had been cultivated, varying from 42 to 53 acres, with testimony that an additional 6 acres could be cultivated and irrigated. Appellants contended it was positively stated there were 60 acres under cultivation. Respondent Taylor testified, and there is no contradiction of his testimony, that he personally had never farmed the land and did not know the amount cultivated.
While there was snow on the ground in March when appellants looked at the property, making such inspection ineffective so far as the dispute involved herein is concerned, (Baylies v.Vanden Boom,
Thus the facts and circumstances herein are sufficiently like those in Breshears v. Callender,
Appellants assign as error the refusal to admit in evidence a broker's listing card. The briefs neither cite authorities nor argue this assignment which will therefore not be considered. (Berg v. Aumock,
The judgment is affirmed. Costs to respondents.
Ailshie, C.J., and Budge, Morgan and Holden, JJ., concur.