221 P. 133 | Idaho | 1923
— This is an action by appellants to procure the cancelation of a promissory note and for damages. The complaint alleges that appellants agreed to buy and respondent to sell an incorporated insurance business, which respondent conducted, and of which he owned practically all the stock; that the balances owing to and owed by said corporation, as shown on its books, were used as a basis in arriving at the purchase price; that respondent wilfully, fraudulently, knowingly and wrongfully represented to appellants that said books of account correctly showed said balances; that said books of account did not correctly show said balances; but on the contrary $876.39, owing to the insurance companies for which the corporation was acting as agent, was not shown on the books, and $276.09 in bills receivable which the books showed to be owing had been collected; that appellants believed and relied upon these representations of respondent; that appellants executed and delivered to respondent in part payment of the purchase
The only assignment of error is that the decision is against law in that the court failed to find on all the material issues, the specific point being that the court failed to find whether respondent made the representations charged in regard to the books of account and whether such representations were untrue. If the point be well taken it is ground for reversal, and it can be raised under the assignment that the decision is against law.
“Failure to find on all the material issues upon which evidence was introduced is error for which a new trial will be granted.
“Where a judgment is entered upon findings which do not determine all the material issues raised by the pleadings with respect to which evidence was introduced, the decision is against law and a new trial may be granted on that account.” (Brown v. Macey, 13 Ida. 451, 90 Pac. 339.)
Respondent’s first contention is that appellants were not entitled to any relief, because they neither alleged in their complaint nor proved that they have tendered back the stock of the corporation and control of the business, which passed to them upon the sale. In support of this contention they rely upon Cowen v. Harrington, 5 Ida. 329, 48 Pac.
“When one has been defrauded in making a contract, he must rescind the same and offer to restore the party to his original rights within a reasonable time after the discovery of the fraud, or he may affirm the contract and claim damages for the injury, neither of which did the defendant do.”
This is a sound rule, .but it was misapplied to the facts of that case. The defendant was not seeking to rescind the contract. He had paid a substantial amount and did not seek to recover it. He sought to defend the action for the balance on the ground that he had been damaged by the false representations of the plaintiff in an amount equal to the balance of the contract price. If he had the right to sue for damages on that ground, as the court says, there is no reason why he should not have the right to defend on the same ground. If the vendee seeks to entirely avoid the payment of the purchase price, then he must tender back the property unless he can prove it is of no value. But, if he has paid something, he should be allowed to defend an action for the balance of the purchase price on the ground that it was equaled or exceeded by damages which he has suffered. So far as the allegations of the complaint are concerned it does not appear that appellants had made any payment. The pleading is consistent with the idea that they seek to keep the property and pay nothing for it, and there is no allegation that it is worthless. Therefore, perhaps the complaint does not state a cause of action for the cancelation of the note. It must be remembered,
We now come to the vital question in the case, whether the court’s findings cover the issues. The trial court was evidently of the opinion that the representations alleged must have been made knowingly and wilfully and with intent to deceive in order to be material. It therefore confined itself to finding that respondent did not make such representations knowingly, wilfully and with intent to deceive. The idea back of this evidently was that an actual fraudulent intent would have to be proved to make a defense. Generally speaking, this is true. There is, however, a well-established exception in a case where the circumstances impose upon the vendor a special duty to know the truth of his representations, or where the nature of the situation is such that he is presumed to know the facts to which his representation relates. In such cases a misrepresentation is fraudulent even though not made knowingly or wilfully or with actual intent to deceive. Good examples of cases coming within this exception are that of a vendor pointing out the boundaries of his land. (Bradford v. Adams, 73 Wash. 17, 131 Pac. 449; Purdy v. Underwood, 87 Or. 56, 169 Pac. 536); a vendor pointing out the wrong land (Donelson v. Michelson, 104 Neb. 666, 178 N. W. 219); a vendor representing land as free from encumbrances although he has himself executed a mortgage (Kiefer v Rogers, 19 Minn. 32) ; and the act of one drawing a check against insufficient funds (King v. Murphy, 151
The judgment is reversed and the cause remanded for a new trial in accordance with the views herein expressed. Costs to appellant.