Brown v. Domestic Utilities Manufacturing Co.

[734]

HENSHAW, J.

A hearing before this court in the matter of the above appeal was ordered, after decision- by the district court of appeal of the second appellate district, reversing the judgment of the trial court which was in favor of the plaintiffs.

The frauds perpetrated by defendants and appellants upon these plaintiffs, which frauds were established by the evidence and found by the court, were so gross that equity would lend all of its legitimate powers to relieve plaintiffs from the effect of them. It was because the trial court had decreed that such relief should be granted and the court of appeals had determined that in the state of the record it could not be granted, that this court assumed jurisdiction of the case to resolve this question, if equity so permitted, in favor of the injured parties.

The trial court had excused the plaintiffs for their unwarranted delay in beginning their action for rescission under findings to the effect that they were and continued to be under the influence of defendants unduly and improperly exercised upon them. It was shown in the opinion of the court of appeals that these findings could not afford relief to plaintiffs for their laches, because there was no pleading of such undue influence or of a confidential relationship, and there was no evidence upon which this relationship could be founded—nothing further, in short, than that the plaintiffs believed the representations of the defendants. But upon petition to this court it was pointed out that in the month of October, 1910, after discovery of the frauds and the worthless character of the contract into which plaintiffs had been induced to enter, Mrs. Brown sought an interview with defendant Crooker and said to him: “There is nothing about this deal like we expected it to be, and I says, 'Let’s give back the papers and quit,’ and he says, ‘No, we are not in the business to give anything back. ’ ” No mention of this evidence had been made in the opinion of the court of appeals. This court, for the reasons above indicated, thought it worth while to consider the question with a view to determining whether this evidence could be construed, under all of the circumstances, as a sufficient offer of rescission and a refusal by defendants to rescind, and whether, if this position could be sustained, it could properly be said that the subsequent