11 Mont. 138 | Mont. | 1891
This case stands for review, upon appeal from the judgment and an order overruling appellant’s motion for a new trial. The object of the action was to obtain a decree of cancellation of a deed of conveyance of an undivided one-fourth interest in a certain quartz lode mining claim, situate in Jefferson County, known as the “ Ida Mine,” for alleged gross inadequacy of consideration paid for said property, and acts of fraud and deceit in the procurement thereof. It appears that the deed of conveyance in question was made and delivered March 22, 1890, in consideration of one thousand and twenty dollars paid to the grantor, and on the twenty-fifth day of that month he commenced this action for cancellation of said deed. In the complaint an offer is made to restore to defendant the sum of money paid plaintiff as such consideration, with interest thereon, or to pay the same into court for the use of defendant, or to make such disposition thereof as the court may direct; but it is not shown by the complaint that plaintiff had, prior to the commencement of the action, tendered or offered to return to defendant said sum of money. Defendant’s counsel moved the court for judgment on the pleading, on the ground that an action for cancellation of a contract cannot be lawfully commenced and maintained unless it is shown by plaintiff that he has first tendered back to defendant that which was received as consideration for the execution of the contract, and that the same does not appear in this case. The motion was overruled, and the action of the court in that respect is the first alleged error assigned by appellant.
We do not perceive why, in reason, the doctrine contended for should apply in cases of this nature. The very object and
We think the rule is sustained by the greater weight of authority as applicable in cases like the one at bar. If such were not the rule, fraud might, in its manifold resources, frequently contrive to so shape the conditions and circumstances that the defrauded party could not make an offer to restore, prior to invoking the power of the court for relief; and relief would then be denied by reason of the rule. However, the rule seems not to be applied to all cases where rescission is sought, as will be seen by consulting the cases cited supra. Where a party defrauded is so situated in respect to the subject-matter that he
This cause was tried by the court, sitting with a jury impaneled to aid in finding the facts. All other specifications of error urged by counsel for appellant relate to the admission of evidence and finding of facts. It was alleged in the complaint that one George La Point, by prearrangement, conspired with defendant to aid him in procuring a conveyance of said property from plaintiff for a grossly inadequate consideration; and that in furtherance of such design said La Point did a series of wrongful acts, and made certain false representations, specifically set out and alleged, calculated to aid, and which did aid defendant in procuring a conveyance of said property. During the trial the court permitted plaintiff to introduce testimony tending to prove that, two days prior to making the conveyance to defendant, said La Point sought out and introduced himself to plaintiff, and inquired about his present circumstances, means of support, and intentions; and finding that he was without money, and looking for employment, told plaintiff that he (the said La Point) would furnish plaintiff money for his present expenses; told plaintiff he ought not to seek employment; that La Point had been told plaintiff was the best prospector that could be found, and proposed that plaintiff should enter into a partnership arrangement with La Point to go prospecting for mines; and that they agreed upon such partnership arrangement; and that said La Point induced plaintiff to go about the town of Anaconda with La Point to look for, and arrange to purchase, certain supplies to use in such prospecting business ; that during this time, and from the first meeting of said parties, plaintiff was encouraged by said La Point to drink -extensively of intoxicating liquors furnished by the latter; that plaintiff became intoxicated, and while in that state said La Point procured a deed from plaintiff conveying to La Point a one-fourth interest in said Ida Mine, in consideration of one hundred and four dollars in money, and two promissory notes made by said La Point for two hundred dollars each, payable to plaintiff.
What evidence was there before the court tending to prove the existence of such agency, prearrangement, or conspiracy? The answer of the defendant in the action admits that “the defendant went to Anaconda for the purpose of purchasing said interest, and took with him for that purpose the draft referred to, upon information sent him by La Point;” and again admits “that defendant, being a stranger, had La Point find plaintiff, and bring him to defendant, as a matter of convenience to him;” and, again, defendant’s answer “ avers that this defendant went to Anaconda upon information received by him from La Point that he could purchase said property.” It is true these admissions are innocent enough in themselves, but they do show some co-operation by said La Point with defendant in reference' to the object sought to be consummated.
In addition to those admissions in defendant’s answer, prior to the admission of the evidence under consideration, testimony had been introduced to the effect that on said 22d of March, said La Point sought and found plaintiff in a saloon at Anaconda, where he had been engaged at card-playing and drinking intoxicating liquors; that plaintiff was invited by said La Point to go to his house in Anaconda, and La Point accompanied plaintiff there; that plaintiff understood from La Point’s invi
This brings us to the point raised by the counsel for appellant, that the court erred in admitting certain testimony as to the value of said mine, and that the finding that the value of said mine was forty thousand dollars is unsupported by evidence. Appellant’s counsel have not explained wherein the evidence introduced as to value does not conform to the views-expressed in Montana Ry. Co. v. Warren, 6 Mont. 275, and in the opinion of the Supreme Court of the United States affirming the same case, 137 U. S. 348. Neither is it explained wherein the witnesses were not shown to be fully competent to testify as to the value of said mine. In this case the mine was developed to such an extent as to have produced valuable ores, from which valuable returns had been derived. Not only so, the property appears, at the time, to have had a market value. About the-time in question a one-eightli interest in said mine had been sold for five thousand three hundred dollars, and a one-fourth interest
In the brief of counsel for appellant it is urged that the court erred in allowing witness Mclntire to testify on behalf of plaintiff that defendant’s father, William Berkin, worked a few days in said mine prior to the transaction in question. This point was not specified to the court below as error, on the motion for new trial, as appears by the record, and the same is therefore passed without consideration.
In this case it appears that defendant obtained the interest in question by paying about one tenth of its market value. From the evidence set forth in the record, there is scarcely room for a reasonable doubt, that when defendant undertook to find plaintiff, and obtain a deed for said property, defendant had knowledge of the value of the property which he sought to obtain for so small a consideration, and also had reason to believe that plaintiff was ignorant of the present value of the same. Defendant’s testimony convinces us of that, notwithstanding his great effort to conceal the fact that he had such knowledge. He admits that he heard it rumored that Al. Sheed had sold his eighth interest in said mine for four or five thousand dollars. This was the person from whom defendant borrowed the money with which to purchase plaintiff’s interest. Defendant says in his testimony that the fact which led him to make an effort to find plaintiff was that he (defendant), “like a good many others, was excited about this property.” “That is, ” he says, “my curiosity was excited. A good many were hunting for him, and I thought I had the same right, and that I would do the same. I thought there might be something in it, by reason of the inquiries that were being made about him. There were a good many around here hunting for him, and one man told me he would give me three hundred dollars if I could find him.” Defendant further testifies that the subject of this mine “ was in everybody’s mouth; ” that it had been reported to him that the plaintiff was lost; that plaintiff had been ad ver
However, as counsel for appellant correctly argue, inadequacy of consideration alone is not sufficient cause for cancellation of a conveyance, except, perhaps, in extreme cases. Inadequacy of consideration is one strong element of the cause, and, if accompanied by circumstances which amount to fraud, the cause for relief is made out. Mr. Pomeroy, in his work on Equity Jurisprudence, states forcibly and succinctly the principles applicable to this subject, and accompanies his text with a multitude of authorities, bringing his research down to a recent date. We quote some of his observations. He says: “The rule is well settled that where the parties were both in a situation to form an independent judgment concerning the transaction, and acted knowingly and intentionally, mere inadequacy in the price or in the subject-matter, unaccompanied by other inequitable incidents, is never of itself sufficient ground for canceling an executed or executory contract. If the parties, being in the situation and having the ability to do so, have exercised their own independent judgment as to the value of the subject-matter, courts of equity should not, and will not, interfere with such valuation. In some of the earlier decisions, mere inadequacy, either in the price or the value of the subject-matter, was held to be a sufficient hardship, which might defeat the specific performance of an executory contract when set up as a defense. The doctrine, however, is now settled that mere inadequacy — that is, inequality in value between the subject-matter and the price — is not a ground for refusing the remedy of specific performance. In order to be a defense, the inadequacy must either be accompanied by other inequitable incidents, or must be so gross as to show fraud. In short, inadequacy as a negative defense, and as an affirmative ground for a cancellation, is governed by one and the same rule. Although the actual cases in
The conclusion which we have reached, after mature consideration of the case, and the points, authorities, and arguments of counsel, is that none of the errors assigned ought to be sustained, and that the findings and decree are fully supported by the evidence. We are satisfied from the evidence that, when defendant set out in his endeavor to obtain said property, he knew full well the value thereof; yet if, with such knowledge, he had sought and obtained a transfer of the property for such small consideration compared to its value, and, to do so, hurried to take advantage of plaintiff’s ignorance of the late development of said property and the greatly increased value thereof, still the transaction might not have been set aside had defendant taken care to keep himself free from the use of means and agencies which tended to place the victim of his covetous design at a still greater disadvantage. Having a knowledge of the value of said property, it clearly appears that defendant contemplated and undertook the procurement thereof for a grossly 'inadequate consideration. Yet with only those facts in view, in a case like this, where no infirmity or weakness of plaintiff is shown, the law is slow to move, and often remains dormant when appealed to for the undoing of the transaction, “provided the parties were both able to judge and act independently, and did act upon equal terms, and fully understood the nature of the transaction,.and there was no undue influence or circumstances of oppression.” (Pomeroy, supra.) But, when gross inadequacy of consideration is shown, the law requires of the defendant the strict avoidance of all false, deceitful, or unfair means calculated to advantage his design; and therein the defendant’s conduct does not stand the test. When we speak of defendant’s conduct, we have in view not only what he personally did, but also what he did through the agency of La Point, Avhom defendant commissioned to “ buy in, or buy the interest ” of Maloy in, said property for defendant, and who aided defend
It is therefore ordered that the judgment and the order overruling appellant’s motion for a new trial be affirmed, with costs,.
Affirmed.