Bigham v. Hawkins

Atkinson, J. This is an effort by a purchaser to procure a decree rescinding a contract for the sale of land, and to recover a personal judgment for so much of the purchase-price .as had been paid. Before a money judgment could be recovered there would have to be rescission, because the contract is conclusive upon the parties so long as it stands. Fraud is relied on as the ground of rescission. The judgment complained of was rendered on demurrer, and resulted in a dismissal of the plaintiff’s action by the court. The controlling question is whether or not the allegations charge fraud upon the part of defendant, thereby inducing plaintiff to enter into the contract. The petition should be construed most strongly against the pleader. Representations as to the quality of well-water on the land constituted the basis of-one of the charges of fraud, while the other related to representations of the defendant in regard to the ponding of water in a certain low place or basin on the land. There were no charges of fraud upon any other subject connected with the transaction. Under a fair construction of the petition, the representations attributed to the defendant in [118] regard to well-water should not be held to apply to any particular existing well, but to well-water generally to be obtained on the farm. The plaintiff did not pretend to allege that pure well-water could not be obtained on the farm, but the allegations complaining of well-water had reference to a single well which was alleged to be in a-condition which every one knows could be brought about in any well by nonuse or insufficient cleansing. The fact that this one well might have been in the condition as described, when compared to the representations attributed to the defendant, would not be sufficient to show that the representations were falsely or fraudulently made. In regard to the basin it is manifest from the allegations of the petition that the plaintiff as well as the defendant, before the first contract was made, examined the land and saw its condition. From the 'allegations it appears that the thing complained of was pointed out by the plaintiff to defendant at the time the alleged representations were made, and before the first contract was made, which occurred in May, 1911. The representations were to the effect that defendant had done a great deal of ditching, and the land was porous, and therefore water would not pond on the place. It is not alleged that this statement was false, in that the land was not porous, and that there were no ditches, which together were sufficient, at the time the representations were made, to prevent the ponding of water. In one portion of the petition it was alleged that the basin was dry when the representations were made; in another, that it ponded water to the depth of several feet covering a large area. It is difficult to reconcile this repugnancy. If the water was actually ponded, the condition was obvious to the plaintiff, and he could not thereby have been deceived. On the other hand, if it was dry, the inference would be that it was properly drained. Such an inference would be reasonable and consistent with the truthfulness of the representation, and, in the absence of allegations to the contrary, should be given effect. The representations were made before the first contract, which was executed about six months before the second contract was made in November, 1911, and nine months before suit was filed in February, 1912. In the meantime there had been excessive rains. Under such conditions natural agencies would tend to clog and fill the ditches and destroy their efficiency for drainage purposes, and probably did so. An 'allegation that [119] after so long a time, under such circumstances, the water ponded, is not the equivalent of an allegation that at the time the representation was made it was false and known to be such. The allegations as' a whole were insufficient to form a basis for a charge of fraud upon the part of defendant, and the case was properly dismissed on general demurrer. Judgment affirmed. All the Justices concur.