126 Minn. 85 | Minn. | 1914
This is an action to foreclose a purchase money mortgage. The defense is that the vendor, the plaintiff, misrepresented the location of the lands conveyed, and that the vendee, the defendant, rescinded because of such misrepresentation. There were findings and judgment for the defendant and the plaintiff appeals.
On January 8, 1912, the plaintiff sold to the defendant 80 acres of land for $4,800, he paying $1,200 in cash, and giving a mortgage for $3,600, due in one, two and three years. The action is to foreclose this mortgage. The plaintiff, at the time of the purchase,
The defendant discovered the mistake on September 20, 1912. He coneededly then had a right of rescission. He at once demanded restitution and a rescission. The only question, upon the concession of the parties, is whether the right of rescission was lost by acts afterwards done which it is claimed constitute an affirmance.
The only circumstance worthy of mention as indicative of an affirmance is the fact that the defendant in October or November, 1912, gave a real estate broker, at the broker’s solicitation, an exclusive agency to sell, or an option, the exact legal character of the instrument not appearing, at the price of $5,000, for 20 days. Nothing was given for it and nothing came of it. The fact of the giving of the agency or option contract is important only because of its evidentiary force in proof of affirmance.
The single circumstance stated is of far too inconclusive a character to overthrow the finding of the court that there was no affirmance of the purchase. We do not depart from the rule announced in Crooks v. Nippolt, 44 Minn. 239, 46 N. W. 349, and Marshall v. Gilman, 47 Minn. 131, 49 N. W. 688, that the right of rescission must be exercised promptly and that it is lost by waiver or affirmance. The facts in those cases differ widely from the controlling facts in the case at bar.
Reasonably prompt action is required of the vendee, and knowing of the right of rescission he must not affirm; but some sensible regard is to be given to the situation of one who has parted with a substantial sum of money, and has given his negotiable notes in a considerable amount, when he is confronted with knowledge that the land pointed out to him is not that covered by his deed. The defendant was anxious to escape without litigation the results of an unfortunate transaction. When an apparent opportunity to sell came he was willing to embrace it. The law does not condemn such act to the extent of holding that as a matter of law it is an affirmance. Whether there is an affirmance is usually a question of fact. It was so in this case;
The case was rightly determined.
Judgment affirmed.
