169 N.W. 588 | N.D. | 1918
Lead Opinion
This is an action to rescind a contract for the purchase and sale of 160 acres of land, in Hettinger county in this state, and to recover the consideration paid under the contract.
The plaintiff’s claim, as stated in the complaint is that the defendant R. A. Grant “falsely and fraudulently represented that said land was much nearer Mott, North Dakota, and Burt, North Dakota, both market points for said land, than the same in fact is; that he falsely and fraudulently represented that said land was all good farming land with no gumbo or stone-on the same, when in truth and in fact the said land has stone on the same and much of the same is gumbo; that he falsely and fraudulently represented that said land or place had a good well of water thereon, when in truth and in fact the water thereon caiinot be used; that he falsely and fraudulently represented that said land was worth $40 per acre and that all land adjoining and, near was selling for that amount, when in truth and in fact said land is not worth to exceed the sum of $25 per acre; that he falsely and fraudulently induced this plaintiff to buy said land for the sum of $39 per acre or a total of $6,24-0.” And that the plaintiff, relying upon said representations, agreed in writing to buy the premises, and paid to the defendants the sum of $1,000 as paid of the purchase price. That by reason of the falsity of said representations, the plaintiff was deprived of all the benefits which he otherwise would have derived from the purchase, and that as soon as he discovered that the representations were false, he demanded a rescission, and a return of the $1,000 which he had paid to the defendants. ■.
The defendants, in their answer, admit that they sold the land in controversy to the plaintiff under the written contract attached to the answer, and that the plaintiff paid $1,000, as part of the purchase price according to the terms of such contract. The answer further avers that the plaintiff has defaulted in the terms of the contract, rendering the same subject to cancelation, and that the defendants have elected to cancel and terminate the contract. The defendants prayed judgment:
That plaintiff’s action be dismissed; that the land contract be canceled and terminated, and all rights of the plaintiff thereunder foreclosed, and that the $1,000 paid by the plaintiff be forfeited to the defendants as liquidated damages under the terms of the contract.
The court further found: “That on the 24th day of September, 1917, the plaintiff and defendants entered into the following agreement' in writing: ‘September 24th, 1917. I hereby agree to surrender to B. A. Grant contract for deed which I hold conveying the N. E. ¿ of 14-132-92, upon payment of $200 on or before December 1st, 1917, providing that he will be put to no further expense in connection with this settlement.7 77 .
The court also found that the defendants have at all times been willing, ready, and able to comply with the terms of said land contract and settlement agreement, and that the defendants have incurred expenses aggregating $200 in conducting the litigation in the instant case. The court ordered judgment': (1) That the contract “be and the same is hereby in all things foreclosed and canceled, and the plaintiff barred from all right to redemption thereunder, and the defendants be and they are hereby given immediate possession of said premises, and defendants7 title to said premises is quieted as to any and all claims of the plaintiff to said land;” (2) that the plaintiff have judgment against the defendants for the sum of $200, with interest thereon at 6
The only error assigned on this appeal is that the court erred in rendering judgment against the defendants for $200, and interest. The appeal is taken from the judgment roll proper. No statement of case has been settled. Hence, we have no means of knowing what evidence was introduced, stipulations made, or proceedings had in the court below. We have before us merely the pleadings, the findings of fact, conclusions of law, and the judgment. It is, of course, elementary that the judgment comes before us with all presumptions in its favor. And the appellant has the burden of showing error. And he must present a record affirmatively showing such error. 2 Enc. Pl. & Pr. 423, 424; Erickson v. Wiper, 33 N. D. 193, 225, 157 N. W. 592. “A mere suspicion or color of error is not sufficient, but every reasonable intendment establishing the regularity of the decision rendered must be removed, as all doubtful interpretations will be resolved in favor of the validity of the action of the trial court.” 2 Enc. Pl. & Pr. 425. Where a material fact or circumstance essential to establish the error is omitted, the presumption on appeal is that it would have sustained the decision objected to, if included. And where the record does not affirmatively show error, it will be presumed “that every proceeding below essential to its legality was validly taken, and that every fact essential to its regularity was legally shown. And where, on any contingency supposable in the state of the record, the decision below might have been valid, such contingency will be so presumed.” 2 Enc. Pl. & Pr. 425, 428-433.
And so, while the settlement agreement was not an issue under the pleadings, we must assume that it properly became one by action of the parties during the course of the trial. The plaintiff in his brief asserts that the agreement was offered in evidence by the defendants. As already stated we have no means of knowing what the fact is with respect to the admission of this agreement, but we must assume, in support of the decision appealed from, any contingency which might have occurred upon the trial under which it might have been proper for the court to render the judgment which it did. Hence, we must assume that the settlement agreement came properly before the court by action of the defendants themselves.
On this appeal, the defendants seek to retain the benefit of this favorable portion of the judgment. They have carefully limited their assignments of error so as to assail only that portion of the judgment which awards to the plaintiff judgment against the defendants for the amount stipulated to be paid under the settlement agreement. The only question presented on this appeal is whether that portion of the judgment should be eliminated and the remainder of the judgment allowed to stand. Upon the record before us we are not prepared to say that the trial court erred in rendering the judgment which it did. The defendants asked for and received equitable relief. We cannot say that the trial court erred in requiring these defendants to pay to the plaintiff the amount stipulated in the settlement or compromise agreement of September 24, 1917. It follows from what has been said that the judgment appealed from must be affirmed. It is so ordered.
Dissenting Opinion
(dissenting). This is an action to rescind a contract for the purchase and sale of a quarter section of land which is about 10 miles from Mott, in Hettinger county, North Dakota. (N. E. ^ 14-134 — 92.) In May, 1917, the plaintiff contracted to buy the land at $39 an acre and to pay (as he did) $1,000 cash and the balance at stated times, with interest, and to pay the taxes for the year 1917, and during that year the defendant reserved to himself the use of the land. And thus the sale price ivas about $45 an acre. ■
The complaint avers that to induce the plaintiff to make the contract and to pay $1,000 cash, R. A. Grant falsely misrepresented the nearness of the land to Mott and Burt, the nearest market towns; and that it was all good farming land, with no gumbo or stones, and that it had a good well, and that it was worth $40 an acre; and that all adjacent land was selling at $40 an acre; that plaintiff relied on said representations, which were wholly false. The well did not contain water fit for use, and there was on the land much stone and gumbo, and it was not worth over $25 an acre.
In the brief of counsel for plaintiff, it is said that, at the time of contracting, plaintiff was a mere boy, in his early twenties, and he resided at Madison, South Dakota. That in May, 1917, plaintiff arrived at Mott with a confederate of Grant, was given a sumptuous dinner, and talien on a car to overlook the country and to see the land. That about dusk Grant drove hurriedly along one side of the land, falsely assuring the plaintiff that it was all the same as that along-the road; that it had a good well and was free from stones or gumbo, and that it was only 8 miles from Mott, when in truth it was 10 miles from Mott. It had several acres of stone and gumbo land, and the well was unfit for use.
The answer denies any fraud or misrepresentation, and avers that the defendants have been damaged by reason of the sale in the sum of $3,000 or more. It demands a rescission of the contract and a forfeiture of the $1,000. The action was commenced in due time, to wit, November 13, 1917. On March 15, 1917, judgment was entered, and
September 24, 1917.
I hereby agree to surrender to R. A. Grant contract for deed which I hold, conveying the northeast quarter of 14-132-92 upon payment of $200, and R. A. G'rant agrees to surrender all notes given with said contract, and to pay $200 on or before December 1, 1917, if not put to further expense in connection with ,the settlement.
[Signed] Adolph Eaad
E. A. Grant.
The judgment is that the contract be canceled and that Grant pay the $200. The conditional promise to pay $200 amounts to nothing; it was not in accord and satisfaction; it was repudiated by Grant, and it was not pleaded, and it should not have been received in evidence. The judgment should have been in favor of the plaintiff for a rescission of the contract and a return of the $1,000, with interest, or it should have been for the foreclosure of the contract by a sale of the land, or by giving the plaintiff a reasonable time to make his payment in accordance with the contract.
It is true the contract contains the clause that in case the purchaser fails to make any payment the contract shall, at the option of Grant, be canceled, and all payments shall be forfeited and retained as damages; but the province of equity is to grant relief from penalties and forfeitures, and not to enforce them. “The rule is practically absolute that equity will not lend its aid to enforce either a penalty or a forfeiture.” 16, Cyc. 75, 80.
A party to a contract may rescind the same in the following cases: 1. If the consent of the party rescinding was given by mistake or obtained by fraud or undue influence. Comp. Laws, § 5936. Undue influence consists: a. In the use by one in whom confidence is reposed by another, of such confidence for the purpose of obtaining an unfair advantage over him. K In taking an unfair advantage of another’s credulity or weakness of mind. c. A contract by a minor between eighteen and twenty-one years may be rescinded or disaffirmed as of course, on returning the consideration.
While the record does not present a statement of the case> there are facts which do speak. The plaintiff is lacking in years and in shrewdness, and his counsel is a young lawyer just commencing the practice. Defendant is a shrewd land trader, and he has no burden of scruples. In May, 1917, he received from the boy plaintiff $1,000 on a sharp and overreaching land contract, and he has shown himself perfectly willing to keep the land and the money. He has always retained possession of the land, and has never given the plaintiff any value for his money. He has induced the plaintiff to sign a paper releasing his claim to the land and the money for a mere conditional promise to pay him $200, and now, without offering to pay $1, he is willing to retain the land and the $1,000 of plaintiff’s money.
The court may well take official notice of what is generally known concerning the average rainfall, the crop, and land values in Hettinger county. Twenty-five dollars to $30 an acre is a good price for any ordinary quarter section of land. Expert opinion fixes the average valuation at $17.62. In township 134 of range 92, the assessed valuation per acre is $3.92, and most of the land in that township is nearer market and better located than section 14. Manifestly there was a mistrial and a gross miscarriage of justice. Hence, the judgment should be reversed and a new trial granted.
This case has been decided without any conference and the result of the majority opinion is to permit a robbery to the amount of $800.
Rehearing
On Petition for Rehearing.
Defendants have petitioned for a rehearing. They contend that our decision in this case is contrary to the rule announced in Regent State Bank v. Grimm, 35 N. D. 290, 159 N. W. 842. An examination of the decision in the Grimm Case will disclose that in that case we expressly recognized the rule which we invoked in sustaining the judgment in the case at bar.
We referred to the fact that notice of cancelation has not been served, in discussing the terms of the judgment rendered by the trial court. It has been the policy of our laws for a long period of years that executory contracts for the sale of land shall not be canceled, and payments thereon forfeited, without first affording the vendee an opportunity to comply with the terms, and obviate the cancelation of the contract. The vendor-may not by stipulation in the contract reserve the right to declare a cancelation; nor can he declare such cancelation except by service of written notice stating the grounds of default. Comp. Laws 1913, §§ 8119-8122. Under the original statute enacted in 1903 (Laws 1903, chap. 201), the vendee was allowed “thirty days after the service of the notice upon him, in which to perform the conditions or comply with the provisions upon which the default shall have occurred.” And such compliance obviated a cancelation, and caused the contract to remain in full force. § 8122, supra. This policy was not only continued in force by chapter 151, Laws 1917, but the time allowed to the vendee in which to make compliance was extended to six months. Of course, where a contract is sought to be .canceled by an equitable action, the court is required to proceed on equitable principles and render such judgment as the equities in the
■ It is insisted, however, that in any event the judgment should be reversed as against Ethel M. Grant, for the reason that she did not sign the settlement agreement. This question is presented for the first time on the petition for rehearing. This fact alone would justify a denial of the petition as to this ground. Sweigle v. Gates, 9 N. D. 538, 84 N. W. 481. But in this, case a denial of the petition also as to this ground may well be placed upon the merits of the proposition. Bor the findings of fact are to the effect that “the plaintiff and defendants entered into The’ agreement in writing.”
The former decision will stand. A rehearing is denied.
Concurrence Opinion
I concur in the result.
Concurrence Opinion
I concur in the result.