Smith v. Griswold

6 Or. 440 | Or. | 1877

By the Court, Boise, J.:

The first question presented for consideration is, has a court of equity jurisdiction of this case ? It is claimed by the appellant that the plaintiff has a complete remedy for the injuries complained of in an action for deceit.

In this case there had been a sale of certain claims against the United States by the plaintiff to defendant (Griswold), and a bill of sale executed by the plaintiff, which made Griswold the legal owner, and enabled him to collect the same for his own use. The complaint alleges that Griswold in order to induce the plaintiff to sell these claims, amounting to one thousand three- hundred and seventy-five dollars, for the sum of three hundred dollars, falsely represented to him that no allowance would be made for the use of a mule, which constituted one of the claims, and in substance that no more than three hundred dollars, or thereabouts, would be allowed and paid for all these claims, and that such representations were false, and that the defendant knew them to be false when he made them, and that by reason of such representations the plaintiff was induced to part with his property. These facts might be the foundation of an action for deceit, and the plaintiff in such action claim as damages the balance of said claims above three hundred dollars. And the question is, can he maintain this suit in equity, in in which he asks that said bill of sale be set aside and canceled, and the defendant be declared his trustee for the balance of the one thousand three hundred, and seventy-five dollars, after deducting the amount paid, three hundred dollars. It would be necessary to invoke the aid of a court of equity to cancel this bill of sale, if that is necessary, to complete relief, but it is urged that, it appearing from the complaint that the defendant has the money, and the amount is certain, it is not necessary to have any accounting between the parties, that the remedy by an action would be complete, and that nothing would be gained by having this sale rescinded and this bill of sale canceled. We think that as this bill of sale transferred the property to defendant and was evidence of the sale, the plaintiff had a right to seek redress in a court which could rescind the contract and place him in the condition as to the ownership of the property in which he was when the sale was made. Such jurisdiction is exercised in courts of equity, notwithstanding there is a remedy at law. (Story’s Eq. Jur., secs. 190, 191.)

It is also insisted that the complaint does not state facts sufficient to constitute a cause of suit. That whatever false representations were made by Griswold were mere matters of opinion as to the value of these claims. The complaint says he represented that nothing would be allowed for the mule, and not more than three hundred dollars would be paid on all the claims, and that he (Griswold) knew these statements were false. These are sufficient allegations of fraud to sustain the complaint. If it had been alleged that he said that in his opinion no pay would be allowed for the mule, and that no more than three hundred dollars would be paid in all, and it were further alleged that when he pretended to express such an opinion he knew to the contrary, this would have been deceit, and have been suggesiio falsi, and would have made him responsible so that he could not profit by his fraud.

It is further suggested by the defendant’s counsel that the plaintiff ought not to recover, because that by proper diligence and prudence he could have known that his claims were allowed to the amount of one thousand three hundred and seventy-five dollars. That a court of equity will not aid a person who had an equal opportunity to be informed as to the subject-matter of the contract. And it is true, as said by Judge Field in the case of Slaughter v. Gleason, 13 Wall. 383, cited by appellant, that “a court of equity will not undertake, any more than a court of law, to relieve a party from the consequences of his own inattention and carelessness when the means of knowledge are at hand and equally available to both parties, and the subject of the purchase is alike open to both parties for their inspection.” But this is not such a case. The subject of the purchase was not alike open to the inspection of both parties. The complaint says that Griswold knew his representation that nothing would be allowed for the mule was false. It appears that at the time of the sale he had information of the allowance of these claims which was not equally possessed by the plaintiff, and of which he had then no means of knowledge at hand. The evidence was at Washington city, and it makes no difference that he could have obtained it before the defendant prepared to purchase. The rule as to voluntary blindness applies only to cases where the parties have equal opportunities to know, at the time of making the trade or pending negotiations thereto.

We are of opinion, therefore, that plaintiff is entitled to a decree, provided the defendant made the false representations alleged and the plaintiff was thereby induced to part with his property. And this being asserted on the part of plaintiff and denied by the defendant, we will have to look into the testimony to determine whether the plaintiff has proved his case by a preponderance of testimony. The only evidence as to the false representations is contained in the deposition of the plaintiff, who swears that they were made and gives the circumstances and the times and places when they were made.

The defendant in his deposition admits that he met the plaintiff at the time and place testified to by the plaintiff, and admits that he bought this claim for three hundred dollars and that he told the plaintiff that Dowell was debared from practicing at the departments, but positively denies that he made the false representations complained of. Both these parties had sworn to the same facts in their pleadings that they testified to in their depositions.

The question is, Has the plaintiff proved his case by a preponderance of evidence? If the parties are entitled to equal credit there is no preponderance, and the case of the plaintiff is not proved. We suppose it may be claimed that the fact that Smith sold his claim for less than its value is a presumption in his favor, but the fact that a party has sold his property at a price less than its real value will not defect a sale unless the purchaser made fraudulent representations which induced the sale, and the fraudulent representations must be proved and will not be presumed, so the only question after all is, were they made, and in order to find that fact from the evidence before us Ave must reject the evidence of the defendant. He is not impeached, and the court cannot reject his evidence without violating the rule that the evidence of a witness not impeached must be considered, and Ave think that when parties come and submit a case— each supporting his pleading solely by his own testimony — ' there is no preponderance of testimony. The court might as well decide that the sworn complaint of the plaintiff shall prevail over the sworn one of the defendant. And in order for the plaintiff to overcome the evidence of the defendant, he should produce some other evidence to corroborate his testimony, else the case stands as to the preponderance of proof where it did when the issue was made.

The case will be reversed and the plaintiff’s bill dismissed.