248 N.W. 250 | S.D. | 1933
This case has heretofore been considered by this court, at which time an order overruling a demurrer to the complaint was sustained. See same title,
[1-3] The court submitted to the jury the question of fraud under comprehensive instructions. The plaintiff excepted to the court withdrawing from the consideration of the jury the question of rescission of the contract, which it was alleged was induced by fraud, and assigns error on account of the court's action in this regard. This matter will be the first subject of our consideration.
Section 906, Rev. Code 1919, provides as follows: *263
"Rules Governing Rescission. Rescission, when not effected by consent can be accomplished only by the use, on the part of the party rescinding, of reasonable diligence to comply with the following rules:
"1. He must rescind promptly, upon discovering the facts which entitled him to rescind, if he is free from duress, menace, undue influence, or disability, and is aware of his right to rescind; and,
"2. He must restore to the party everything of value which he has received from him under the contract; or must offer to restore the same, upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do so."
The trial court held that the evidence was not sufficient to constitute a rescission, under the above quoted section of our Code. The material evidence, as given by the plaintiff, disclosed the following facts. The appellant claimed that prior to February, 1927, she had been induced by the defendants to turn over a part of the insurance money she had received on account of the death of her husband, for certain notes and mortgages held by the defendant bank of which her husband was president at the time of his death. She then claims that in February, 1927, and some time prior thereto, the defendants, Saunders, Goodman, Blomquist, and Benedict, who had been closely associated with her and her husband, in a social and business way, prior to her husband's death, and who were her advisors following the husband's death, fraudulently induced her to turn over the notes and mortgages she had received in the prior transaction for certain stocks, as follows: 108 shares of Farmers' Merchants' National Bank; 25 shares of G.L. Wood Farm Mortgage Company; 20 shares of Corona State Bank. In addition to the above stock, she received a note of $5,000, which it is undisputed was signed by her deceased husband, and which it is claimed by the defendants was signed by plaintiff. The culmination of this last transaction, whereby she received this stock and the $5,000 note, occurred in February, 1927. At this time, the plaintiff's father, who was a retired businessman, was living with the plaintiff. A few days after this transaction, this plaintiff talked with her father, and at that time the father told her that she had made the greatest mistake of her *264 life, and that the stocks that she had received were worthless. Following this conversation, the plaintiff called the defendants to her house and told them what her father had said. She testified, as follows: "That is the last talk I had with them. The next thing I did was to hire Mr. Turner. That was some months later."
The evidence discloses that she consulted Mr. Turner, who was a practicing lawyer in Sisseton, S.D., in the early part of November, 1927. The fraud, upon which appellant relies, is alleged misrepresentations as to the value of the stocks which she received. From February to November the appellant did nothing concerning this transaction. In November she consulted Mr. Turner, and Mr. Turner thereafter had a conference with the defendants. On December 29, 1927, Mr. Turner served upon the defendants a notice signed by the appellant, wherein it was offered to return to the defendants the shares of stock, above referred to. Thereafter nothing further was done until this action was commenced on July 28, 1928. During all of this time, the Corona State Bank stock was paying dividends. Dividends upon this stock were paid to and accepted by Mrs. Saunders, at least once prior to the time Mr. Turner served the notice, and twice thereafter.
Under these circumstances, we believe, the trial court correctly ruled that a rescission had not been accomplished. This court has consistently held, under the provisions of section 906, that the rescission to be effective must be made promptly after discovering the alleged fraud. Park v. Latham,
After the court had announced its opinion that the evidence would not establish a rescission, the trial proceeded upon the theory that this was an action to recover damages on account of the alleged fraud. The complaint was based upon the alleged fraudulent and dishonest acts of the defendants. See our former opinion. Among other things, the court instructed the jury that as a matter of law a fiduciary relation existed between the plaintiff and defendants, Benedict and Blomquist, and that on account of this relationship the law imposed upon these defendants the duty of taking no unfair advantage of the plaintiff in any transaction connected with the case. The appellant now complains because the questions of duress, menace, and undue influence were not submitted to the jury in the form contained in certain proposed instructions submitted by the appellant. Sufficient to say is that we have carefully reviewed the evidence and instructions, as given by the court, and we are of the opinion that the instructions fully and comprehensively submitted the issues to the jury, as those issues were framed by the pleadings and developed at the trial.
[4] The appellant next complains that the will of the plaintiff's husband was before the jury, at the time of its consideration of this case, without having been admitted in evidence. Appellant offered, and there was received as evidence, Exhibit 175, which was the inheritance tax report made in connection with the proceedings in the estate of appellant's husband. Upon the motion for a new trial a great number of affidavits were submitted in connection with this will being before the jury. The clerk of courts, in the county in which the action was tried, made an affidavit to the effect that it was he who produced Exhibit No. 175 at the request of counsel for appellant and that at the time he testified concerning the same, and when it was admitted in evidence, there was attached to it, and as a part of it, a copy of the said will, and that the exhibit was in the same condition when he received it back from the jury. We are of the opinion that the trial court was justified in concluding that the copy of the said will had been a part of exhibit 175, and that this was offered and received on *267 behalf of the appellant. There was no error in denying the motion for a new trial because of this occurrence.
[5] The appellant further contends that there was misconduct on the part of the jury in arriving at its verdict, and in connection therewith submits the affidavits of several of the jurors. However, this court has established by a long line of decisions that the evidence of the jurors will not be received to impeach the jury's verdict. See Murphy v. Murphy,
We have carefully reviewed the many other assignments of error, and find nothing therein prejudicial to the rights of this appellant. We are convinced that the plaintiff had a fair and impartial trial; that the matter was fairly and comprehensively submitted to the jury; and that the jury's verdict is final.
The judgment and order appealed from are affirmed.
POLLEY, CAMPBELL, ROBERTS, and WARREN, JJ., concur.