White v. Oregon Realty Exchange Investment Co.

BELT, J. Was plaintiff defrauded as alleged? After careful study and consideration of the evidence, we believe, as did the trial court, that plaintiff dealt with the defendant at arm’s-length and with his eyes open. He had listed his property with real estate agents for four or five years, and, prior to this transaction, had investigated property values in the City of Salem with a view of disposing of his property. It is fair to assume that he knew as much about real estate values in Salem as the defendant did about farm values in Linn County. Furthermore, he had the benefit of the advice and knowledge of Howard, his broker, who accompanied him and his wife at the time the property was inspected, and prepared the contract which the parties signed. Assuming that defendant made the representation alleged relative to the value of the lots upon which the apartment house is situated, we think, in view of all the facts and circumstances, that it was merely a matter of opinion, and not a representation of fact upon which fraud could be predicated. We are not unmindful that a representation of value may under certain circumstances amount to fraud, but not so in the instant case. This court has many times declared the law applicable to the question under consideration, and we deem it unnecessary to review the authorities again. Mr. Justice Band, speaking for the court, in Castleman v. Stryker et al., 107 Or. 48 (213 Pac. 436), aptly says: *642 “Where parties to a contract stand on equal footing • and have an equal means of knowledge, and there is no relation of trust or confidence between them, fraud cannot be predicated on a representation as to value. Value is largely a matter of judgment and estimation upon which men may differ; hence, representations of value, as a general rule, are not material: 12 E. C. L., p. 281.” Both parties, no doubt, placed a somewhat inflated value on their respective properties, as is so often done in cases of trade or exchange. It is common knowledge that actual cash market value and trade value of real property generally differ materially. After the above memorandum agreement was executed, it was understood between the parties that Howard, when he returned to Portland, was to prepare another form of contract, giving a more detailed statement of their agreement. Howard, on the following day, made the contract in triplicate in accordance with the directions stated, and mailed each party a copy. Plaintiff strongly urges as evidence of fraud that Purdy, in the presence of himself and wife, burned all copies of the last agreement prepared by Howard. We have closely scrutinized this transaction, but do not believe it indicates a purpose to defraud plaintiff. Purdy, at the time of burning these papers, had not signed the same, and says that what he did was with the knowledge and consent of plaintiff. Howard, in the proposed contract, had fixed the value of the property exchanged at the sum of $10,000, and provided for payment of his commission as a broker on such'basis. Purdy, according to the testimony of plaintiff, put the papers in the stove, saying, “That will end up this commission business.” Purdy’s explanation of this incident is strongly sub *643 stantiated by tbe following significant letter written by plaintiff to Howard on June 6, 1922: “Dear Friend: The deal is going all right, but I do not get possession until the 14th. I do not consider the property worth over $6,000. Therefore I could not pay over $150 commission. I will take $6,000 cash for it quick. You will have to settle with Mr. Purdy for his part of commission. I settle mine. I will send you a check for my part as soon as the exchange is made. Yours truly,” etc. It may be that Purdy and the plaintiff had conceived the idea of avoiding payment of the broker’s commission, but we fail to see wherein this transaction tends to establish fraud as alleged by plaintiff. We are not clearly and satisfactorily convinced -that the proof establishes the other allegations of fraud, and we concur in the findings of the trial court. Such findings, while not conclusive, are highly persuasive. The trial judge has a decided advantage over this court in passing on questions of fact, and we ought to be and are hesitant to disturb his conclusions. It may be that plaintiff has made a bad bargain, but it is not the province of courts to relieve persons from improvident contracts when entered into as a result of fair dealing. Appellant cites many authorities in support of his contention that while the contract was executory on the part of the defendant, he was entitled to rescind the same, regardless of the element of fraud; and, having done so, defendant’s only recourse was an' action for damages, if plaintiff’s rescission was unwarranted. It is unnecesary to consider this contention for the reason that we think defendant had fully performed its contract prior to the commencement of this suit. Authorities cited bearing on executory contracts have no application. *644 The contention that there was a mutual rescission of the contract is wholly untenable. It is clear that plaintiff soon became dissatisfied with his trade, and was looking for an opportunity to rescind the contract. He refused to take possession of the property conveyed to him, and because defendant was obliged to retain possession and operate the business, it cannot reasonably be contended that it thereby acquiesced in plaintiff’s attempted rescission. Defendant’s conduct was not inconsistent with the contract and indicated no intention to abandon the same. The decree of the lower court is affirmed. Affirmed. McBride, C. J., and Bean and Brown, JJ., concur.