155 P. 179 | Or. | 1916
Opinion by
There was received in evidence at the trial in support of the first cause of action set forth in the com
“The party of the first part agrees to have water-pipes laid either in front, or rear, or through each lot sold in Bayocean Park (said water-pipe to belong to the party of the first part); to grade and pave all streets in Bayocean Park, and to lay paved sidewalks on each side of same; to lay out and improve grounds to contain not less than six acres, and to erect on said grounds a first-class hotel and such other attractions as may be deemed most suitable and desirable by it; to install at least three docks, or boat landings, on the bay side of Bayocean Park, and to operate a ferryboat between Bay City, or some other suitable railroad station, on the eastern side of Tillamook Bay and Bay-ocean Park.
“Said first party hereby agrees to work continuously on said improvements, and to expend not less than one hundred thousand dollars ($100,000) each year from*301 January 1, 1909, until same is fully completed. All improvements herein named to he made without expense to party of second part. * * The said second party, in consideration of the premises, hereby agrees that * * he * # will make punctual payments of the above sums as each of the same shall become due respectively, and that in respect to each of such payments time is of the essence of this contract. It is further agreed that in case the said party of the second part shall fail to make any such payments promptly at the time provided in this contract for such payment, or shall fail in the performance of any other agreement herein contained by him to be performed, or violate any other of the agreements herein contained, then and in any such case all payments which shall have been made by the party of the second part hereunder shall be absolutely and forever forfeited to the said party of the first part, and this contract shall be null and void as to both parties hereto without notice, and the said party of the first part shall have the right, without notice, thirty days after the failure of the party of the second part to comply with the stipulations of this contract, or any one of them, to enter upon the land aforesaid and take immediate possession thereof, together with the improvements and appurtenances thereto belonging. And the said party of the second part covenants and agrees that * * he * * will surrender unto said party of the first part the said land and appurtenances without delay or hindrance. ’ ’
The question, therefore, to be considered is whether or not the case made by the defendant conclusively shows that by reason of the alleged fraudulent representations of the plaintiff he is entitled to recover the sums of money paid on account of his purchase of the several lots in Bayocean Park. It is argued by plaintiff’s counsel that the several answers, by way of counterclaims, do not state facts sufficient to constitute defenses, in that they contain neither an averment that' the defendant had rescinded or sought to annul the contract, nor an allegation that he had sustained any damages by reason of the asserted false representations. An Objection to that effect was interposed to questions propounded to the defendant who, as a witness in his own behalf, was interrogated in respect to the alleged false representations, but, the objection having been overruled, an exception was allowed. .
Based on the same grounds, the plaintiff’s counsel, .when both parties had introduced their evidence and rested, moved for a directed verdict in favor of their client, but the motion having been denied an exception was saved. Thereupon the defendant’s counsel stated to the court that the 'written agreements had been received in evidence, and if a verdict were returned for the defendant he would, before the judgment was entered, make'proper assignments of the contracts to the plaintiff, thereby complying with the tenders alleged in the answer.
“Where a party,” says Mr. Justice Swayne in Grymes v. Sanders, 93 U. S. 55, 62 (23 L. Ed. 798), “desires to rescind upon the ground of mistake or fraud, he must, upon the discovery of the facts, at once announce his purpose, and adhere to it. If he be silent, and continue to treat the property as his own, he will be held to have waived the objection, and will be conclusively bound by the contract, as if the mistake or fraud had not occurred. He is not permitted to play fast and loose. Delay and vacillation are fatal to the right which had before subsisted. These remarks are peculiarly applicable to speculative property like that here in question, which is liable to large and constant fluctuations in value. ’ ’
The defendant testified, as averred in the answer, that, having heard rumors to the effect that the alleged statements so made by the plaintiff were false, he ceased making further payments on the contracts, but that he did not visit and inspect the lots until inore than six months thereafter when he found that such representations were untrue. The defendant resided at Portland, Oregon, and in a day he could have made the journey from that city to Bayocean Park. He is chargeable with laches in not sooner ascertaining and properly asserting his rights, and in consequence of such neglect he is not, by reason of an attempted rescission, entitled to recover any part of the sums of money which he paid on account of the contract.
Without adverting to the allegations of new matter in the answer, which it is maintained by .plaintiff’s counsel are insufficient to constitute defenses to the action, it is concluded that an error was committed in not dismissing the action as to both parties. From these considerations it follows that the judgment is reversed and the action dismissed as indicated.
Reversed and Dismissed.