111 P. 739 | Mont. | 1910
delivered the opinion of the court;
The plaintiff began this action in the district court of Silver Bow county to recover the sum of $840, alleged to be due upon a certain promissory note for $1,000, dated October 8, 1907, upon which the sum of $160 had been paid. The defendant for answer alleged that prior to the date of the note the plaintiff represented to him that 'he (the plaintiff) was interested in a lease of certain coal lands near Chestnut, Montana; that the land was valuable as containing coal which could be mined at great profit; that plaintiff induced the defendant to accompany him to a piece of land which plaintiff represented as the premises in question, and, upon arriving at a certain point, the plaintiff pointed out to the defendant a place which had been excavated and which had the appearance of a coal mine, and from which considerable coal was being extracted and from which coal could be mined at a great profit, and stated to the defendant that the said place and coal mine were on the premises mentioned in the lease, and that all of said premises described in the lease were very valuable on account of the fact
“Exhibit A.
“This lease and agreement made and entered into by and between Mike Novaek and Mary Novaek, his wife, parties of the
“In witness whereof, said parties have hereunto set their hands and seals this 24th day of September, 1907.
“Mike Novack.
“Mart Novack.”
Exhibit B, attached to the answer, reads as follows:
“Agreement of Trust.
“Know all men by these presents that I, John Turk, of Butte, Silver Bow county, Montana, for and in consideration of the
“I further agree to make all such payments immediately after settlement, and each and every settlement of the matters of business between myself and the said C. M. Parr under said lease and agreement, and that in the event of property described in said contract from Novack and wife be purchased and title passed. Therefore, I do agree to bind myself upon the execution and receiving of such deed or deeds for the title to the land set forth in said agreement to make, execute, acknowledge and deliver to the said John Rudman, his heirs, representatives or assigns a deed or deeds conveying to him, one-tenth (1/10) interest in and to said property.
“[Signed] John Turk.”
The reply admits that the plaintiff represented to defendant that he was interested in the lease, but denies that he ever represented to defendant that the land was valuable as containing coal which could be mined at a great profit or any profit at all; “but, on the contrary, alleges that said plaintiff made an honest expression of his opinion to the defendant that the said land contained coal which could be mined at a profit.” Plaintiff further admits that he induced the defendant to accompany him to a place where plaintiff represented the premises to be, and that, arriving at a point upon said premises, plaintiff pointed out the land to the defendant, “upon which said land there was
Exhibits A and B, attached to the reply, read as follows:
Exhibit A.
“Timberline, Oct. 25th, 1907.
“We, Mike Novack and Mary Novack, his wife, hereby consent to a change of the terms of that certain lease and bond on coal land known as the east half of the N. E. % of Sec. 26, Tp. 2 S. B. 7 east, as follows: Boyalty to be five cents per ton, we to have no interest in lease and bond, changed from two hundred thousand dollars, to a price of ten thousand dollars, other conditions
his
“[Signed] Mike S Novack.
mark
“Mary Novack.
“Witness: Mtke Novack.”
Exhibit B...
“Agreement of Trust.
“Know all' men by these presents that I, John Turk, of the city of Butte, county of Silver Bow, state of Montana, for and in consideration of the sum of one thousand dollars ($1,000), a note of hand being executed and delivered to me for the same, and for the further consideration that .John Rudman, of the same city, county, and state, share an equal expense in the operation of mining and premises hereinafter described in that certain lease and agreement, made and1 entered into between Mike Novack and Mary Novack, his wife, as parties of the second part, and bearing date September 24, 1907, a copy of which is hereto attached and made a part hereof, that I will pay and render unto the said John Rudman an undivided one-quarter (%) part of all the net profits which I may receive hereafter under and by virtue of the said lease and agreement. I further agree to make all of such payments immediately after each and every settlement of the matters of business between myself and C. M. Parr under the said lease and agreement; and that in the event of the property described in said lease and agreement is purchased and title passed to C. M. Parr and myself, I agree to bind myself upon the execution and receiving of
“[Signed] John Rxjdman.
“John Turk.
“Signed, sealed and delivered in the presence of John Barta, Butte, Montana, March 11, 1908.”
At the trial the plaintiff' testified that on the 18th or 19th of September, 1907, he took the defendant to the ground in question; that one Tony Hoff and he had been there prior to that time; that he did not know that the tunnel where the coal was being extracted was not on Novack’s ground, and further said that two young surveyors whom he had taken to the ground concluded that the place where the coal was being mined was not upon the Novack ground, but that Novack still claimed that it was upon his ground. He said also that Rudman asked for an interest in the Novack lease; that, after the surveyors reported, he wrote to Rudman and informed him that the excavation was not upon the ground1 in which they were interested; and that he was “going to give him a one-fourth interest, instead of a one-tenth interest, and told him to give me an answer back if he was not satisfied, and he answered back that he was well satisfied. ’ ’ He testified that he and Rudman went to the property and Novack showed them over the premises, whereupon Rudman. said that he was well satisfied with it, well satisfied that there was coal there; that he did not make any representations to Rudman at that time concerning the excavation or tunnel; that he worked upon the property from the middle of October to the latter part of February, 1908; that Rudman and himself stood one-half of the expenses and Parr stood one-half “for the forty acres.” He also said: “"We went up to attorney Barta’s office to draw the agreement, because I didn’t want to draw up any papers before Parr' because he would not like to see it that I sell an interest.”
The defendant testified that he went to Chestnut and upon the premises in question, at the solicitation of the plaintiff. He further testified: “I paid Mr. Turk $1,500. As to this note, he says: ‘You pay me some time after when you got the money. After some time I ship coal, you make money, and then you pay me this $1,000.’ I did not want to pay him the cash. I said I would pay him after I got the money from the coal. When I went out on the ground, I went with Mr. Turk and his nephew, Joe Turk. They showed me the tunnel there. As to that tunnel, Mr. Turk says: ‘Well,’ he says, ‘there is lots of coal here. We will make money out of it.’ He said that this tunnel was on Novack’s ground. I did not know anything about coal land. I did believe what Turk said, because he is my brother in law. I did believe that the tunnel was on Novaek’s ground. I believed it because Turk told me. After that, Turk came back in March, and he said that that tunnel was not on that ground. Q. And why did you put in your money there—because what Turk said, or what for? A. No; because what Turk say, because he was asking me for that, that I shall go in, he needs the money. You know he can’t work it, he got no money. I got a few dollars, and he says: ‘You give it to me. I give you one-tenth interest and go to work and ship coal.’ When we made the last agreement on March 11, 1908, he said: ‘Now, look, John, this coal tunnel is not on the ground, but I give you one-fourth here on the Novack ground.’ And he says: ‘If we get a little bit, John, we will get coal.’
At the close of the testimony, the plaintiff made a motion for a directed verdict, in terms as follows: “Comes now the above-named plaintiff, John Turk, and moves the court to direct a verdict in the above-entitled court and cause, in favor of the
It is necessary to assume that plaintiff had been informed by persons in Chestnut prior to the time when the parties hereto visited the coal ground that the tunnel was not upon Novack’s land. He denies it, but Hoff affirms it. It was a question of fact for the jury whether such information had been received. Whether Turk told Rudman that the tunnel was on the Novack ground was also a matter for the jury to decide. If he did, the jury might have determined that he was guilty of actual fraud in connection with a matter which we deem material by virtue of sections 4978, 4980, Revised Codes, which read as follows:
“Sec. 4978. Actual fraud, within the meaning of this chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract: (1) The suggestion, as a fact, of that which is not true, by one who does not believe it to be true. (2) The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true. (3) The suppression of that which is true, by one having knowledge or belief of the fact. (4) A promise made without
“Sec. 4980. Actual fraud is always a question of fact.”
The fact that Rudman was afforded every opportunity to examine the ground is immaterial. He declares, in effect, that his judgment as to the value of the. ground was based upon the fact that he believed Turk’s assertions that the tunnel was on the Novack land, and that coal was therein disclosed. A consent which is not free is nevertheless not absolutely void. It is, however, voidable. (See section 4972, Revised Codes.) Section 5062, Revised Codes, declares that a contract is extinguished by its rescission. Section 5063 provides, in part, as follows: “A party to a contract may rescind the same in the following cases only: (1) If the consent of the party rescinding * * * was * * * obtained through # * * fraud, exercised by * * '* the party as to whom he rescinds, * * * (2) If, through the fault of the party as to whom he rescinds the consideration for his obligation fails, in whole or in part, (3) If such consideration becomes entirely void from any cause. (4) If such consideration, before it is rendered to him, fails in a material respect, from any cause.” Section. 5065, Revised Codes, reads thus: “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 entitle 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 other 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.”
In .the case at bar there is no claim made that the defendant was not an entirely free agent on March 11, 1908, when he executed the second so-called “trust agreement.” No fraud was being practiced upon him at that time, either actual or con
We find no error in the action of the court in directing a verdict for the plaintiff. The judgment and order appealed from are therefore affirmed.
Affirmed.