| Or. | Dec 30, 1919
Lead Opinion
The vital contention in the suit is whether the representation of the defendants about the
In Boelk v. Nolan, 56 Or. 229" court="Or." date_filed="1910-03-22" href="https://app.midpage.ai/document/boelk-v-nolan-6901586?utm_source=webapp" opinion_id="6901586">56 Or. 229 (107 Pac. 689), the plaintiff had left his realty in Tillamook County in charge of a friend and had gone to California for the benefit of his health. He had not been heard of for several years and in his interest the friend, fearing he was dead, allowed the property to go to sale for taxes and bought it in for the purpose of holding it in trust for the plaintiff. The defendant managed to ascertain where the plaintiff was, went to California and bought the property for a trifling sum, representing to him that his land had been sold for taxes; that his title was gone; and that he, the defendant, wanted the deed from the plaintiff to confirm a title which he himself had acquired. Although well known to him, the defendant said nothing about the attitude and purpose of the friend whom the plaintiff left in custody of the property. The court there held:
“It was the duty of the defendant, when he undertook to inform plaintiff about the condition of the latter’s title to the land, to make a full, truthful and complete'declaration of all the conditions, within his knowledge, affecting it; and his failure so to do amounts to such a fraud as entitled plaintiff to a cancellation of his" deed. ’ ’
“The general rule is well settled that municipal ordinances and by-laws are not laws of which judicial notice will be taken, but facts to be pleaded and proven. If not duly pleaded, they cannot be proven; and if duly pleaded and not proven in legal method, the action must fail no matter how notorious the ordinance may have been. The general rule, however, is held not to apply to proceedings brought in a municipal court, for here the ordinance is the peculiar law of the forum, of which the court is bound to take judicial notice, and this obviates any necessity for pleading the ordinance.”
The litigation in hand has no relation to any proceeding in a municipal court and must be determined by the general law of the land. Our statute, Section 90, L. O. L., requires city ordinances to be pleaded as facts, which shows that the courts will treat them as facts. Moreover, the plaintiffs did not have equal opportunity with the defendants to know about the ordinances, because the attention of the latter had been especially called to the matter, through their agent, by the city authorities. The defendants were in possession of knowledge affecting the rentability of the property, which was not possessed by the plaintiffs, and it was manifestly concealed with the purpose of inducing the trade. The action of the defendants in keeping
“The maxim that ‘he who seeks equity must do equity’ is evidently not violated by the failure of the plaintiff, in a suit to rescind a contract for fraud, to allege a restoration of, or an offer to return, the consideration, or a willingness even to do so, for by his application to the court for equitable redress he concedes that before it will be awarded he must do equity, which will compel him to account for everything of value he may have received, thereby tacitly inviting the court to protect the rights of the defendant by decreeing a restoration in consideration of the rescission.”
The principles thus enunciated control the determination of the issue here. The decree of the Circuit Court will therefore be reversed and one here rendered to the effect that the defendants reconvey to the plaintiffs the Hood River County property and that the plaintiffs reconvey to the defendants Nelson Hackett and W. A. Hackett the Portland property, and return to said defendants the promissory note for $400 taken as part of the exchange, together with $600 cash paid thereon; each conveyance to be delivered to the clerk of the Circuit Court for the opposite party within ten days from the entry there of the mandate of this court; and that in default of so doing, the decree shall stand and operate as and for the required conveyance.
Reversed. Decree Rendered.
Rehearing
Petition for Rehearing.
(186 Pac. 581.)
On petition for a rehearing. Denied.
Mr. Ernest C. Smith, for the Petition.
Messrs. Brona/ugh & Carter, contra.
“It is not always necessary that the speaker should actually know that his representation is false. If the statement is of a matter susceptible of accurate knowledge and he makes it recklessly, without any knowledge of its truth or falsity, and in the form of a positive assertion calculated to convey the impression that he knows it to be true, the representation is equally fraud*21 ulent. The rule just stated applies, although the speaker honestly believes that the fact which he represents as existing actually does exist. In such a case it is apparent that he cannot believe in the truth of the statement he makes — that he knows the fact to exist— and the fraud consists in passing on his opinion or belief in the guise of positive knowledge. Consequently the speaker is not relieved from liability, although in making the assertion he relies upon trustworthy information. ’ ’
Here, the truth of the statements of the defendants was capable of exact verification or refutation. In fact, the representations were untrue and in morals and good conscience, which are the substance of equity, it was the duty of the defendants, having opened their mouths to speak on the subject of the availability of the property as a renting proposition, to disclose what knowledge came to the defendants afterwards about the error of their representation, while yet the negotiations were in progress. It would be quite another matter if they had not undertaken to give any information on that subject. It is one thing to conceal, and quite another merely to remain silent; and concealment may rest upon partial statement and partial.silence.
The case of Frederick v. Sherman, 89 Or. 187" court="Or." date_filed="1918-05-28" href="https://app.midpage.ai/document/frederick-v-sherman-6906346?utm_source=webapp" opinion_id="6906346">89 Or. 187 (173 Pac. 575), cited in support of the petition for rehearing, was an instance where the defendants actually had a patent right which they were seeking to sell to the plaintiffs. They made no representations about the solvency of the firm from which they acquired the right. They were not called upon to make any disclosure on that subject. In very truth, after the plaintiffs purchased the right they carried on business for some months before the common grantor failed. The opinion of Mr. Justice Benson points out clearly that the parties dealt at arm’s-length and that since no
The plaintiffs have filed a petition calling for a modification of the decree herein, so that it shall specifically award to them the chattels involved in the attempted exchange of properties between the parties. Answering this petition, it is suggested by the defendants for the first time, so far as disclosed by the record before
The complaint alleged that the plaintiffs had retained possession not only of the realty which they formerly owned but also of the personal property then on the premises and which was included in the exchange sought to be impeached, and that the plaintiffs had given notice of rescission of the contract on the ground of the fraud alleged to have been practiced upon them by the defendants. The custody of all the property by the plaintiffs was admitted by the answer. That pleading averred that the plaintiffs were insolvent; that a receiver should be appointed 'to take charge of the property, and that an injunction should be issued to prevent alienation thereof by the plaintiffs. No order appears in the abstract enjoining the sale of the property or appointing a receiver, and the only information we have about the existence of such an officer is a suggestion made in the defendants’ answer to the plaintiffs ’ petition for a modification of our former decree. The effect of our former holding was to declare void the contract which the parties entered into, with the result that each was to be restored to his own. On the record put before us, stating as it did that the plaintiffs were still in possession of the personalty, there was no occasion expressly to declare them to be the owners thereof.
The statement of counsel for the defendants that the Circuit Court actually appointed a receiver is not controverted. For the purposes of this opinion, therefore, we assume that one was chosen and that he most likely incurred some expenses relating to the property. We have no data whereby we can settle his accounts. That is a matter properly judicable before the Circuit Court which appointed him.
Rehearing Denied.