91 Neb. 63 | Neb. | 1912
From a decree of the district court for Lancaster county, canceling certain notes and a mortgage upon the northwest quarter of section 29, township 11, range 8, in Lancaster county, and ordering the execution of a deed ^by plaintiff to defendant H. E. Gibson for certain lands in Costilla county, Colorado, together with certain shares in two irrigation companies in that county, and canceling a deed to the land in Lancaster county, above described, executed by plaintiff to one H. Ross, and a deed to said lands executed by said Ross to defendant Free, and quieting plaintiff’s title in and to said land, defendants appeal.
The brief of defendants contains three assignments of error, as the grounds upon which the appeal is based: (1) That the evidence is not sufficient to sustain the findings and decree. (2) That there was no actual fraud on the part of defendants and no damage to plaintiff, and that in any event plaintiff, by his acts and conduct after discovering the fraud and deception, waived his right to rescind. (3) That the settlement pleaded was in full force and effect, and that the court erred in not giving-full faith and credit thereto.
The record shows that defendants A. L. and B. G. Button are brothers, and in 1908 were doing business under the name of “Button Land Co.” Their stationery set forth that the company had a capital of $300,000; that A. L. Button was president and B. G. Button secretary and treasurer. In February, 1908, W. S. Tiger, a brother of plaintiff, who was then in the service of the Buttons as a soliciting agent, contracted with them for the purchase of 80 acres of land in the San Luis Yalley, Colorado, for the sum of $2,800, upon which he paid $600 in cash, and agreed to apply certain of his salary on the purchase price of said land. While so employed he introduced plaintiff to his employers. The Buttons at that time were conducting excursions from Lincoln to the San Luis Valley.
But it is said that plaintiff, by his acts and conduct after discovering the fraud and deception, waived his right to rescind. It is true that, after discovering the deception and fraud which had been practiced upon him, plaintiff, who had been a farmer all his life, did not act with the promptness that would have been shown by men of experience in the business world. He may have been more trustful than a shrewder man would have been, but in a court of equity cupidity is not a good offset against stupidity. We hold that the evidence was sufficient to sustain the decree; that actual fraud on the part of defendants and damage to plaintiff are shown, and that plaintiff’s acts, after discovering the fraud, were not, under the circumstances shown, sufficient to constitute a waiver of Ms right to maintain this suit.
Was the settlement pleaded in defendants’ answer proven? We think not. While it is sworn to by one of the
We do not deem it necessary to refer to or discuss any of the authorities cited. There is no question of law involved in this suit which is not perfectly familiar to every member of the profession. We think counsel for plaintiff is warranted in his contention that, when defendants undertook to represent plaintiff in the sale of his equity in the Lancaster county farm, a fiduciary relation was created betAveen them, and that the rules of laAV requiring a full disclosure by and the utmost good faith on the part of an agent in dealing Avith his principal apply; and that, defendants having themselves merged the deal as to the first quarter section into their subsequent dealings Avith plaintiff as his agent, the whole transaction from start to finish should be treated as one. There is no theory of Iuav or in equity that will warrant our disturbing the righteous judgment entered by the district court.
The judgment is therefore in all things
Affirmed.