Lake v. Owens

CHIPMAN, C. Plaintiff brings the action to rescind a certain agreement to sell to defendant C. W. Owens an undivided sixteenth interest in the so-called “San Bernardino Iron Mines”; also to rescind the deed subsequently made thereto by plaintiff in pursuance of said agreement, and to cancel both, said instruments. The cause was tried by the court sitting without a jury, and the findings and judgment were in favor of defendants that plaintiff take nothing by his action. Plaintiff appeals from the judgment and from the order denying his motion for a new trial.

[198]Plaintiff alleged, and it was found, that he was the owner of an undivided sixteenth interest in the said mines, the testator of defendant Phoebe Owens being also at his death the owner of an undivided, but not the whole of the remaining, interest therein. Defendant Phoebe Owens, widow of deceased, duly qualified as executrix, and was by his will named as sole devisee of her husband’s estate, and inventoried the said mines as property of the estate. Subsequently, to wit, December 18, 1901, defendant C. W. Owens, son of deceased and defendant Phoebe Owens, procured from plaintiff a written contract, by which plaintiff agreed to sell his said interest in said mines to said defendant C. W. Owens for $200, and later, to wit, on February 8, 1902, plaintiff conveyed his said interest to defendant Phoebe pursuant to the directions of defendant C. W. Owens, and upon receiving full payment as provided in said contract. Plaintiff alleges in his complaint that he was induced to enter into said contract through the false and fraudulent representations of said 0. W. Owens; that he (plaintiff) was an old man, infirm in bodily health and strength, and an inmate of the county hospital; that he reposed confidence in said Owens, and believed the representations made by him, and acted wholly upon said representation, among others, that plaintiffs’ interest in said mines was not of greater value than $200; that soon after he had executed and delivered said deed he discovered that the defendants had, previously to the making of said contract and the delivery of said deed, joined in a contract for the sale of said mines for a sum which (had the contract been carried' out) would have yielded to plaintiff $1,200 for his share therein, which fact defendants well knew and purposely concealed from plaintiff; and thereupon plaintiff gave notice to defendants rescinding said contract and deed, and offered to restore to defendants everything of value received from them by plaintiff. Without stating fully the allegations of the complaint, it may be conceded that plaintiff sets forth facts which, had the court found them to be true, would have entitled him to relief. But the court found that the said contract of sale made by defendants was but an option, and that “there had not been paid to either of the defendants any sum of money therefor, or upon said contract, and there was no means of ascertaining whether the said company (the purchaser) would purchase