4 P.2d 633 | Or. | 1931
This is a suit in equity to rescind the contract for the purchase of a certain lot in Terwilliger Heights, Multnomah county, Oregon. The trial court rendered a decree in favor of the defendant, dismissing the suit. Plaintiffs appeal.
The agreed price for the lot was $4,375, of which $1,093.75 was payable on June 1, 1928, and thereafter at the rate of $66 per month, including interest. On May 24, 1928, John M. Pace, one of the plaintiffs, paid $500 as earnest money to apply on the purchase price of the lot. At that time he received a receipt for that amount, stating the purchase price, the down payment of $1,093.75, and the monthly installments of $66 each. The receipt also contained the following language: "It is understood that no guarantee of resale for the purchaser of the above described property is made by this company." Plaintiffs paid the balance of the down payment on June 1, 1928, at which time the formal contract covering the sale and purchase of the lot was executed. Subsequent installments were regularly made for 18 months, including July, 1928, and December, 1929, making the total payments $2,281.75. He also paid $10.00, one-half of the 1928 taxes.
The negotiations for the sale were carried on by N.B. Clarke Company for the Edgemont Investment Company on commission. On the day the contract was executed, John M. Pace, one of the plaintiffs, in writing authorized N.B. Clarke Company, as their agent, to sell the lot for a price of $500 in excess of the purchase price of $4,375. By this agreement N.B. Clarke Company could retain as its commission any amount received for the sale of the lot above $4,875, being the amount of the purchase price, plus $500. *34
The grounds for rescission, claimed by plaintiffs, are misrepresentations set forth in plaintiffs' complaint, as follows:
"(a) That plaintiffs would not have to make the first payment on the lot;
"(b) That it would be resold before the first payment became due;
"(c) That it would be resold at a great profit to the plaintiffs before first payment was required to be made;
"(d) That particular attention would be paid to the resale of this particular lot and the first payment would not have to be made;
"(e) That a concrete pavement 18 feet in width would be laid in front of the lot which they were urging plaintiffs to buy, connecting the same with Terwilliger Boulevard, all at defendant's expense;
"(f) That many large houses, larger than those now being erected would be under construction in the immediate vicinity of this lot shortly."
The answer of the defendant consisted of a general denial and a further and separate answer in which it was alleged that N.B. Clarke Company agreed to sell the property as agent for defendant Edgemont Investment Company, and that N.B. Clarke Company was not the agent of the defendant but an independent contractor, and, for a further and separate answer, the defendant set up that the plaintiffs made the contract to purchase after the claimed misrepresentations were made, and continued to make the payments on the property and acquiesced in the contract and ratified the same by continuing to make payments, and at all times treated the contract as legal and valid, and in so doing ratified the contract. The reply put in issue the allegations of new matter in the answer. *35 The trial court found that the allegations of the complaint were not sustained by the evidence. In this finding we fully concur.
The plaintiffs did not allege or prove that they sustained any pecuniary loss or injury on account of the transaction. There is no proof submitted to the effect that the fair market value of the lot purchased by plaintiffs was less than the agreed purchase price. See Cameron v. Edgemont Investment Co.,
In a suit for rescission, based on fraud, plaintiffs must allege and prove that they suffered damage or injury. The plaintiffs, having failed to so allege and prove damage, cannot recover: Sharkey v. Burlingame Co.,
In Southern Development Co. v. Silva,
"In order to establish a charge of this character the complainant must show, by clear and decisive proof: First. That the defendant has made a representation in regard to a material fact; Secondly. That such representation is false; Thirdly. That such representation was not actually believed by the defendant, on reasonable grounds, to be true; Fourthly. That it was made with intent that it should be acted on; Fifthly. That it was acted on by complainant to his damage; and, Sixthly. That in so acting on it the complainant was ignorant of its falsity, and reasonably believed it to be true." *36
2 Pomeroy's Equity Jurisprudence (3d Ed.), § 898, states the rule as follows:
"The party must suffer some pecuniary loss or injury as the natural consequence of the conduct induced by the misrepresentations. * * * Fraud without resulting pecuniary damage is not a ground for the exercise of remedial jurisdiction, equitable or legal; * * *"
The main assignment of error is that the trial court erred in failing to find plaintiffs were induced to buy the property by reason of false representations made by the employees of Clarke Company to the effect that they would resell the lot at a profit of $500. The plain fact in regard to this matter is that the defendants did not agree to resell the lot for the plaintiffs; on the other hand, in the receipt which was given to the plaintiffs, and remained in their possession six or seven days before the contract was signed, it was plainly stated that defendant did not guarantee a resale.
There was nothing to prevent Clarke Company from accepting a contract from the plaintiffs, or one of them, for the resale of the lots. The writing authorizing Clarke Company to sell the lots for plaintiffs precludes any misunderstanding on that point. Any apparent authority that Clarke Company had to make such an agreement vanished in the presence of the actual knowledge of the plaintiffs as to the real authority of the agent, or rather the lack of authority to promise that the defendant would sell the lot for plaintiffs: Portland v.American Surety Co.,
It is also contended by plaintiffs that there was a misrepresentation relative to the erection of additional houses in Terwilliger Heights. Mr. Pace testified to the effect that there was already one building going up and that the agents said many more would be built by other parties. Actionable fraud cannot be based upon erroneous prediction that independent third parties would in the future erect houses in the vicinity of the lot: 26 C.J. 1089, § 25; J.C. Corbin Co. v. Preston,
On April 14, 1929, the plaintiffs wrote to the Edgemont Investment Company and called attention to their failure to give credit, and also made this request: *38 "We also would like to ask you about having Mrs. Carlton's name changed on the contract as she has remarried and is now Mrs. John Pode." They were advised that it was not necessary to change Mrs. Carlton's name in the contract but that when the deed was issued it could be made out to Mrs. Pode instead of Mrs. Carlton.
The whole proceedings show, especially the several payments made by the plaintiffs after they were aware of all the facts and circumstances pertaining to the representations and alleged representations on the part of the agents, that they treated the contract as valid. They did not act promptly in attempting to rescind the contract.
In the case of McCabe v. Kelleher,
"As against a subsequent attempt at utter rescission and recovery of what has been paid on the purchase price, payment of installments of the money agreed to be paid, with knowledge of fraud, will amount to such ratification as will defeat complete rescission. The reason is that one wishing to break up the contract entirely must act promptly on the discovery that he has been deceived, and he is not allowed to speculate on whether some advance in values, or the like, will not save him from loss." See also to the same effect James v. Ward,
The plaintiffs have failed to substantiate the allegations of their complaint by proof.
The decree of the circuit court is affirmed.
BROWN, BELT and CAMPBELL, JJ., concur. *39
