153 P. 181 | Okla. | 1915
This being a case of equitable cognizance, this court has jurisdiction to examine the evidence and review the findings of fact of the trial judge (Schock v. *35 Fish,
"Mistake, to be available in equity, must not have arisen from negligence where the means of knowledge were easily accessible. The party complaining must have exercised at least the degree of diligence 'which may fairly be expected from a reasonable person.' "
But the facts in that case are so dissimilar to the case at bar that it cannot be considered as an authority, for the court says:
"The subsequent conduct of the appellees shows that the mistake had no effect upon their minds for a considerable period after its discovery, and then it seems to have been rather a pretext than a cause."
And again: *36
"When a party desires to rescind upon the ground of frand or mistake, he must, upon the discovery of the facts, at once announce his purpose and adhere to it. If he be silent, and continue to treat the property as his own, he will be held to have waived the objection, and will be conclusively bound by the contract, as if the mistake or fraud had not occurred. He is not permitted to play fast and loose.' "
It is plain that the facts in that case are so different from those of the case at bar that the decision has no application.
The case of Dunham v. Smith,
"The only proposition argued for a reversal of this case by plaintiffs in error is that a person cannot sue for damages by fraud, and recover by proving a mistake. We do not think this statement is literally true. As to whether a mistake constitutes a fraud or not depends entirely on the surrounding circumstances. If the mistake is one which the party making it, from his knowledge *37 of the facts, or from his position and opportunity of ascertaining the facts, could readily have discovered before making it, and he acted without due regard for the rights of the other party, and without proper caution to ascertain the truth of the statements made by him, and the other party relied upon these statements and was thereby damaged, we do not think that the law would excuse such a false representation on the ground that it was a mistake. Now the evidence discloses in this case that the palintiffs in error were in the real estate business, and were presumed to know and understand the character of the business they were engaged in. * * * The plaintiff had a right to presume that they knew the exact location of the lots they were selling. The plaintiff not being in the same business, the same presumption would not apply to her as to her knowledge on the subject."
In the case at bar defendant Speed owned these lots, and the plat in Teams' office showed the lots and blocks. Admitting that he did not know the land by lots and block when he showed the plaintiffs in error the lots which he intended to exchange for their farm, common fairness required that before executing the deed he should examine the plat and ascertain if the lots they had selected were the lots he deeded. The plaintiffs, as in the Dunham Case, supra, knew nothing in regard to this land; they relied entirely on the good faith of Speed to convey to them the land which was specifically selected.
Rev. Laws 1910, sec. 904, provides that "constructive fraud" consists in any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice. Granting that Speed did not actually intend to defraud the plaintiffs, yet his conduct comes within this definition. The fact of the *38 numbers of the lots and block in this case was a matter within his knowledge, or which by the exercise of ordinary diligence he should have ascertained before making the deed. Instead of doing so, he makes a deed for lots worth very much less than those selected, and now refuses in any way to correct the mistake, and insists that he is entitled to keep the land of the plaintiffs in error in exchange for lots which they never agreed to exchange, and which are of very much less value than the land they owned, and of much less than the lots they examined. The case of Dunham v. Smith, supra, is wholly in point and governs this case.
There can be no question in this case that, although the main relief prayed for, the cancellation of the deeds and the restoration of the parties in statu quo, has been defeated, yet the plaintiffs are entitled to recover damages.
In Cook v. Warner,
"A court of equity which has obtained jurisdiction of the controversy on any ground or for any purpose will retain such jurisdiction for the purpose of administering complete relief and doing entire justice with respect to the subject-matter, and to avoid multiplicity of suits."
In Woodbury v. Marblehead Water Co.,
In Camp v. Boyd,
"A court of equity ought to do justice completely, and not by halves. As a court of equity should prevent multiplicity of suits, it may, to this end, if obliged to take cognizance of a suit for any purpose, retain it for all purposes, even though this requires it to determine purely legal rights that are otherwise beyond its authority."
The record leaves it in doubt whether leave was ever granted to file an amendment to the amended petition so as to make the allegations thereof conform to the proof. At one part of the record it appears "thereafter, to wit, on the 7th day of February, 1913, the plaintiffs by leave of court granted to amend the petition to conform to the facts, filed their amendment to the petition," and the amendment follows this recital. However, after final judgment, an application was filed asking permission to file such an amendment, which was refused. It is probable that the last order was made on the erroneous finding of fact that no mistake had been made. However this may be, under the facts of this case, leave should have been granted the plaintiffs to amend their petition so as to conform to the evidence. Rev. Laws 1910, sec. 4790; Ball v.Rankin,
We therefore recommend that the judgment be reversed, and the cause remanded for a new trial.
By the Court: It is so ordered.