Pembrook v. Houston

SLOANE, J.

This is an action for damages for alleged fraudulent representations by defendant in negotiating a contract of sale of real estate. General demurrer to the complaint was sustained, and plaintiff refusing to amend, judg- ’ ment was given for the defendant. Plaintiff appeals on the judgment-roll.

[55]

Under the contract as pleaded the defendant agreed to sell, and the plaintiff agreed to buy, a tract of land described as the north thirty-two acres of lots 1 and 2 of fractional section 12, township 1 south, range 11 west, S. B. M., for four thousand eight hundred dollars. Five hundred dollars was paid upon execution of the contract, November 29, 1911, and $250 was to be paid on the 1st of October, 1912, and a like sum yearly thereafter until fully paid, with interest at seven per cent, payable semi-annually. The complaint for damages rests upon an allegation—if it is sufficiently pleaded— that the defendant, in negotiating the sale, pointed out and represented as the land to be sold a different tract than that covered by the description. The plaintiff had paid in all $1,051 on the contract price before discovery of the alleged fraud. She elects to affirm the contract, and sues for damages in the sums of one thousand two hundred dollars for improvements placed on the wrong tract of land, and three thousand eight hundred dollars, the alleged difference between the value of the land actually covered by the contract, and four thousand eight hundred dollars, the value of the land she claims was represented to her.

[1]

The first objection to the sufficiency of the complaint is that it appears therefrom that although the plaintiff had elected to affirm the contract and sue for damages, and is seeking to recover five thousand dollars, she is indebted to the defendant, under the terms of the contract, in the sum of three thousand eight hundred dollars, the unpaid balance of the contract purchase price, with accrued interest thereon, which she has not paid or offered to pay, a portion of which was due before she discovered the facts on which she bases ■ fraud, and that a still larger sum was due before the commencement of this action. We doubt if the failure to allege payment or tender of the amount for which she was in default at the time of discovering the alleged fraud is fatal to plaintiff’s right of action. If the defendant is shown to have been actually guilty of fraud he was not in a position to declare a forfeiture; and we are of the opinion that the fraud, if it existed, justified the plaintiff in withholding the payments to recoup the damages she would be entitled to recover. We so construe the rule laid down by the supreme court in the ease of