Heintzsch v. LaFrance

LANGDON, J.

This is an action to recover the sum of $1,000 paid under a purported contract, after rescission thereof by plaintiffs. The defendant Johansen, a real estate

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broker, acting as agent for defendants H. E. LaFrance and Alma LaFrance, his wife, entered into negotiations for the sale of an auto camp owned by Mr. and Mrs. LaFrance, to plaintiffs. The arrangement proposed was a sale of the business and movable property, comprising various kinds of equipment, and a lease of the land and buildings, at a specified rental. Plaintiffs paid the sum of $1,000 to Johansen, receiving written instruments covering the agreements of the parties, and went into possession of the premises on January 15, 1933. On February 17, 1933, plaintiffs gave notice of rescission of the lease and agreement of sale, offering to restore possession of the land and all property received, and demanding return of the sum paid by them. Defendants refused to comply with the notice and demand, and this action was commenced. The complaint set forth three causes of action, one based on fraud, the second on mistake and absence of mutual assent, and the third in the form of a common count for money had and received. The defendants Johansen and Linthicum, the real estate brokers, failed to appear, and a default judgment was entered against them. The defendants H. E. and Alma LaFrance filed an answer and cross-complaint, denying material allegations of the complaint, and seeking affirmative relief for property used and deterioration of the premises. At the trial plaintiffs abandoned their claim of fraud, and the case proceeded on the single issue of mistake resulting in a failure of mutual assent. The trial court found in their favor. Judgment was thereupon entered canceling the instruments, and restoring to plaintiffs the sum of $1,000, less $389 for rental value of the property and goods consumed by them. The defendant owners bring this appeal.

The conclusion of the lower court that the parties were never in agreement on the material elements of the lease and sale is not questioned, and the propriety of cancellation of the instruments is thus established. The main attack of the appealing defendants is on the court’s finding that the reasonable rental value of the premises, for which plaintiffs were required to account, was $30 per month, for ten months, a total of $300. They assert that the undisputed evidence shows a rental value of $75 per month for the real property and $25 per month for the personal property, for eleven months and nineteen days, making a total of $1163.27,