McNiel v. Holmes

150 P. 255 | Or. | 1915

Mr. Justice Harris

delivered the opinion of the court.

1. The plaintiff was suffering from an impairment of her vision, and had moved to Portland with the hope that a change of residence would improve the condition of her eyes. She had consulted with an occulist at her former place of residence, who gave her no encouragement, and she seemed to be in danger of becoming blind. After arriving in Portland she consulted with defendant, and the relation of physician and patient existed from March, 1910, until May, 1913, When the plaintiff first interviewed the defendant she was, in the language of defendant, “a nervous, fretful woman at that time.” By the exercise of his professional skill the defendant succeeded in bringing about a decided improvement in plaintiff’s condition, and because of the success achieved by the physician the patient quite naturally reposed implicit confidence in the defendant.

The version of plaintiff is at variance with the one narrated by defendant. No good purpose is served by recounting all the evidence, and it will suffice merely to say that a careful reading and analysis of all the evidence leads to the conclusion that the narrative given by thé plaintiff relates the history of the transactions. Miss McNiel was without friends or relatives in Portland. She had about $4,500 invested in first mortgagees in Bridgeport, Connecticut, and about $1,-500 invested in Pomona, California. The defendant was informed of the financial condition of plaintiff. During a period of 13 years her financial affairs had been managed for her by a Mr. Shaw, who resides in the east. She had no knowledge of the values of property, and did not inspect the Seror Park or Rockwood Tract before signing the contract. She told the defendant that she wanted her eyes to get well as soon as possible, so that she could obtain work and earn back some of the money that she had been obliged to expend, whereupon he represented to her that he had made $50,000 in real estate in Portland in eight years, and “he said a better way to do than to try to get work and earn money was to buy real estate.” Miss McNiel testified that she requested the defendant to advise her when “ he had some good buy that he knew was good, ’ ’ and he told her that — ■

“he knew of a first-class buy he could not possibly take, he had gone over in detáil all his business, and he could not possibly arrange to take it, but I could have that buy.”

Miss McNiel further testified:

“He told me he had done everything he could, and he could not possibly arrange to take it, and I said I would be glad to take it. I told him when I would have my first payment, which would be about the middle of June, and I asked him how he could hold so valuable a buy as that was until I could get this money. I said, ‘ Surely as good a buy as that will be taken up, you can’t hold it.’ I said, ‘I shall have no money whatever to put into that until the 1st of June.’ He said, ‘By the payment of a small sum of money I can hold that lot for you.’ I saw him a few days later, and I asked him if he had been able to hold that lot for me, and he said he had, and he spoke about that from time to time, and I went to him and told him when I would have my first money, and I think I showed him letters from my agent; I know I did a little later, because I took them to him, and he read when I would have my first mortgage note. My first mortgage note was to mature the 15th of June, and it came a little sooner than that, and I made my first payment on the Bockwood property the 15th of June, and he gave me the paper you have there.”

The defendant represented that he had made a small payment to the owners in order to hold the property. The circumstance of the name of the defendant appearing in the contract as the seller is explained by Miss McNiel, who testified that:

“When he gave me that property it looked as if he owned the property; his name appeared on it, and his wife’s name appeared on it; and he said because he had made the payment to hold it, it looked as though it belonged to him, but the payment he made was just the same as though he owned the property when it was passed on to me. He told me that it was just the same as though he owned it.”

2. The relationship existing between the plaintiff and defendant presents a twofold aspect: One party was both a physician and agent, while the other was the patient and principal. The physician pretended to comply with the request and became the agent of the patient. The Seror Park Tract was represented to the plaintiff as the property of a third person, when in fact it was owned by the agent and physician. The defendant could not be both seller and agent, unless acting with full knowledge and consent of the plaintiff. The principal had the right to repudiate the contract upon learning’ the truth, without regard to whether the transaction resulted in a loss: 31 Cyc. 1433. It makes no difference that the plaintiff was not injured: Friesenhahn v. Bushnell, 47 Minn. 443; Mills v. Goodsell, 5 Conn. 475 (13 Am. Dec. 90); 31 Cyc. 1440.

3. The conceded and unquestioned rule is that a defrauded party must not delay in repudiating a contract which has been induced by the fraud of another; and, although the plaintiff did not disaffirm with energetic promptness, nevertheless under all the surroundings of the case she did act with sufficient vigilance to entitle her to a cancellation of the contract for the Seror Park Tract. The defendant was advising her from time to time and his situation was no different at the time of the commencement of this suit than it was at the very moment when plaintiff first learned of facts which would have prompted immediate action by a person more experienced in business affairs. The contract signed June 15,1910, should be canceled, and plaintiff is entitled to a judgment for the amounts paid on the contract, with interest at 6 per cent per annum from the date of the several payments, less the sum of $60, received by plaintiff.

4, 5. Having learned that the Union Avenue property could be purchased for $4,000, the plaintiff and defendant each agreed to contribute $2,000 on the price and ‘ ‘ own it share and share alike. ’ ’ The plaintiff advanced $2,000 to the defendant, who in turn paid it to the seller; the defendant, without the knowledge of the plaintiff, took the title in his own name and mortgaged the land to secure $2,000, which he borrowed for the purpose of paying the balance of the purchase price. The plaintiff did not appeal from any part of the decree or judgment, and presumably is satisfied with tbe conclusions reached by the trial court: McCoy v. Crossfield, 54 Or. 591 (104 Pac. 423); Flinn v. Vaughn, 55 Or. 373 (106 Pac. 642). The defendant ought to do that which he agreed to do, and he will be required to convey to plaintiff an undivided one-half interest in the Union Avenue property by executing a proper conveyance within 10 days after the mandate is filed in the Circuit Court, otherwise the decree shall operate as a sufficient conveyance. The defendant had no right to mortgage the interest of plaintiff in the land, but there is nothing to prevent him from encumbering his own undivided interest. If the plaintiff is damaged or injured by reason of the mortgage given by defendant, she may avail herself of any appropriate remedy, and this decree shall not prejudice such remedy.

6. The trial court directed plaintiff to pay to defendant $233.37, which sum was found to be one half of the aggregate amount advanced by the defendant for taxes, costs and charges on account of the Union Avenue property. The amount awarded by the decree appealed from is in excess of the sum the defendant is actually entitled to, but the defendant alone appealed and it is necessary to modify the decree appealed from; hence under the circumstances we think it fair that neither party have judgment for costs or disbursements in this court. The plaintiff, however, is not obliged to pay to defendant the sum of $233.37 unless the defendant satisfies the mortgage so far as the encumbrance affects the undivided interest owned by plaintiff; and, if the mortgage is not paid by defendant, the sum of $233.37 shall be credited on any damage or injury suffered by plaintiff. It is ordered that the decree be modified so as to conform with this opinion. Modified. Rehearing Denied.

Mr. Chief Justice Moore, Mr. Justice Eakin and Mr. Justice Bean concur.