Evans v. Duke
Synopsis
Vendor and Vendee—Fraud—limitation of Actions.—Defendant in an Action for balance of purchase price of a fruit farm is not barred by limitations from defending, and recovering by cross-complaint money paid, on the ground of fraudulent representations, not having till then discovered the misrepresentation as to amount of land, and become convinced of the falsity of plaintiff's representation as to the amount of profits he had realized from the land, and- his representation, repeated year after year, that the reason defendant did not obtain such profits was due to his want of experience.
Vendor and Vendee—Rescission.—False Representations of Vendor that a certain number of acres of the land were under cultivation, and that he had for a number of years obtained certain profits from it, which were fifteen- per cent of the purchase price, are ground for rescission.
Vendor and Vendee—Rescission.—Judgment for Defendant in action for balance of purchase money of land, which rescinds the contract, fixes the amount to be paid defendant, he being charged with rent to date, with interest thereon, and plaintiffs with the amount paid, with interest, and provides that on payment by them he shall deliver possession, subject to his right to enter to remove growing crops, empowers them, by paying the judgment, to prevent his retaining possession while they are paying interest.
PER CURIAM. On August 30, 1893, the plaintiffs and defendant entered into a contract in writing by which the plaintiffs agreed to sell to the defendant certain real estate and some personal property thereon for the sum of $12,555, of which sum defendant paid on February 15, 1894, the sum of $6,310, with interest at nine per cent from the date of the contract, the remainder to be paid in three annual payments, to be made on the first day of. January in each of the years of 1895, 1896, and 1897, with interest at six per cent. The other installments remaining unpaid, this action was brought by the plaintiffs to recover them, and a strict foreclosure was demanded. The defendant answered, and also filed a cross-complaint in which he alleged that he was entitled to and had rescinded said contract on August 9, 1898, for fraud on the part of the plaintiffs, and prayed judgment for the sum of $6,910 alleged to have been paid by him under said contract, and certain taxes and interest, less the rental value of said land. The alleged fraud consisted of certain representations alleged to have been made in August, 1893, and afterward. These representations were (1) that the land and personal property were of the value of $12,555; (2) that the yearly income from the fruit grown on said land had been for several years not less than $3,000 per annum; (3) that in said premises were included not less than sixty acres of cultivated land—forty acres thereof in fruit, and twenty acres thereof under cultivation for the raising of hay; (4) that the apples grown thereon had brought and would continue to bring between $1 and $1.25 per box; (5) [975]that the grape crop of 1893 would bring $1,000; (6) that the income from said premises would net at least fifteen per cent on the $12,555, judging from what it had netted in the past; and (7) that the reason why they wished to sell said property was that Mrs. Evans was an invalid, and by reason thereof they were compelled to reside nearer to Santa Cruz, so that she could receive proper medical attention. It was then alleged that the value of the land and personal property did not exceed $6,910; that the yearly income from the fruit had never exceeded $800; that there never had been more than thirty-five acres of land under cultivation; that the apples had never averaged more than fifty cents per box, and would not average any greater sum; that the said grape crop did not bring more than $200; that the income from said premises had not been and would not be more than one per cent per annum on $12,555; that the first year’s income did not net anything, and did not exceed $800; that defendant apprised plaintiffs of that fact, and that plaintiffs stated to him that the reason why the same had not been more profitable to him was that he was inexperienced in fruit-raising, that it would take him three or four years to become experienced, and that after he had such experience the income from said premises would be as plaintiffs had represented to him; that the annual income from said premises from 1893 to and including 1897 did not equal the expenses; that in each of said years defendant informed plaintiffs that said premises did not net him anything at all; and that plaintiffs on each occasion replied as at first. Defendant further alleged that he had not had any prior experience in fruit-raising; that he knew nothing of the productiveness and quality and quantity of land; that he was ignorant of land values, and was not familiar with said tract of land; that he was almost totally deaf, which made it easy for , designing persons to obtain an advantage over him in business transactions, and that he and the plaintiffs had been for many years intimate friends; and that he had implicit confidence in them. It was further alleged, to conform to the evidence, that these representations were not discovered by defendant to be fraudulent until the month of June, 1898. All these allegations of fraud were denied in the answer to the cross-complaint. Upon the trial a jury was called, and ninety-seven special issues were submitted to it,
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