Scott v. Wallace

201 P. 542 | Or. | 1921

BURNETT, C. J.

1, 2. The defendants agreed to buy the land on the terms specified in the contract. In respect to the question of fraud in such cases the rule has been established in this state by the leading case of Scott v. Walton, 32 Or. 460, 464 (52 Pac. 180), in this language:

“A party who has been induced to enter into a contract by fraud, has, upon its discovery, an election of remedies. He may either affirm the contract, and sue for damages, or disaffirm it, and be reinstated in the position in which he was before it was consummated. These remedies, however, are not concurrent, but wholly inconsistent. The adoption of one is the exclusion of the other. If he desires to rescind, he must act promptly, and return or offer to return what he has received under the contract. He cannot retain the fruits of the contract awaiting future developments to determine whether it will be more profitable for him to affirm or disaffirm it. Any delay on his part, and especially his remaining in possession of the property received by him under the contract, and dealing with it as his own, will be evidence of his intention to abide by the contract.”

3. In this case the defendants have remained in possession of the land in question and there is no pretense that they have offered to return it to the plaintiffs. Called upon to pay the balance due on the purchase price, they have adopted the alternative of affirming the contract and counterclaiming for damages for the alleged fraud. The rule upon the question of damages is thus stated in Ward v. Jenson, 87 Or. 314, 317 (170 Pac. 538):

“It is settled in this state that in an action to recover damages for false representations inducing an exchange of property, the measure of damages is the difference between the market value of the property parted with by the person defrauded and the market value of the property received by him”: Citing numerous authorities.

With these rules of law established, as they are, by a long list of precedents, the question resolves itself into one of fact, whether or not the defendants have been damaged. The query is, whether their alleged damage, when tested by the standard of Ward v. Jenson, supra, amounts to something or nothing.

The Circuit Court, having met the witnesses face to face and having heard them testify, has arrived at the conclusion that in the final analysis the defendants received full value for what they gave and promised to pay. A careful reading of the paper record before us induces the conclusion that the decision of the Circuit Court is sustained by the preponderance of the testimony. The trial judge was in a far better position to determine this question of fact than we who have before us only the cold lines of the printed record. But we are the more ready to affirm his decision because the data before us convinces us that the question of fact was rightly decided.

Computing the amount due upon the note given by the defendants, the court deducted what was due and unpaid upon the second mortgage on the land in question, and entered judgment for the balance and for attorneys’ fees in the sum of $300. Arriving at the same conclusion on the hearing de novo, the decree will be that the plaintiff L. S. Scott will recover from the defendants the net balance due upon the note as thus computed, together with attorneys ’ fees of $300; that unless this balance is paid within ninety days from the filing of the mandate in the Circuit Court, the land shall he sold for the satisfaction of the amount due on the decree, and the costs and charges of sale, and if any surplus remain, it shall he paid to the defendant Ida A. Wallace, as it is admitted that she was to have the title to the land; and that neither party recover costs or disbursements in this court or in the Circuit Court. Affirmed.

McBride, Harris and Brown, JJ., concur.