Hart v. Kimball

Foote, C. — Mr. Hart sought by this action to rescind a contract, which included the purchase by him of a lot of furniture, and a lease from the defendant, Mrs. Kim-ball, of a boarding and lodging house, and to enforce the reconveyance to him of a lot or parcel of land, which he had previously conveyed to M. H. Kimball, her husband and co-defendant.

He based his claim to the relief prayed for upon the alleged fraudulent acts and representations of Mrs. Kim-ball, made anterior to the making of the contract, and which alone induced ■ him to enter into it. Judgment was rendered as demanded in the complaint, and from that and an order refusing a new trial this appeal is prosecuted.

The respondent contends that the appeal from the order first mentioned should not be considered, for the reason, as he alleges, that the notice of motion for a new trial specified that such motion would be made, not only upon the minutes of the court, but also upon a bill of exceptions and a statement of the ease, and that, therefore, the statement upon which the motion was heard by the trial court should have been disregarded, since the moving party relied upon that method of procedure, and did not file any affidavits or use the minutes of the court.

[285]We do not concur in this view of the law, for the respondent had full notice that all the statutory methods of procedure to obtain a new trial would be adopted by the appellants, and when they elected which of such methods they would pursue, such election was their privilege, and did not prejudice in any way the rights of the respondent, the other methods being thereby abandoned.

The specifications wherein it was alleged in what particulars the evidence did not warrant the findings were, we think, sufficient, and a hearing should be accorded, both to the appeal from the order, and to that from the judgment.

The appellants assert that the complaint did not state a sufficient cause of action, and that their demurrer thereto should have been sustained.

The pleading first mentioned sets out at some length certain acts and representations of Mrs. Kimball, which are alleged to have been false and fraudulent, and that the plaintiff relied on them as being true in making the contract, and has suffered damage thereby.

To us it seems that what Mrs. Kimball is alleged to have said and done would have warranted any prudent man in entertaining the belief that the boarding-house was doing a good and profitable business, and that the. furniture, piano, and other things bought from her by the plaintiff were of the kind, and worth what she claimed; such being the case, the plaintiff having relied upon them, and been deceived to his damage, would have a right to a rescission of the contract, if he made his offer to rescind in a proper manner, and within a reasonable time after his discovery of the fraud which had been practiced upon him.