Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-03-06
Supreme Court

In the Supreme Court, October, 1912.
term.
John S. Sncvc n Bredine Sneve,
Plaintiffs and Respondents, VS.. George 5.
Schwartz. and Sallie NJ. Schwartz, De-
PENDANTS .and Appellants.
Plaintiffs and defendants entered into
the written e%xecutory contract set up
in the opinion, whereby they were to eX-
change certain properties at a future
date after abstracts of title had been
furnished and the deeds deposited In
escrow. Plaintiff brings this suit alleging
false and fraudulent representations up
on the part of defendants which in
duced him to enter into said contract.
Defendants demur upon the ground that
the complaint does not state facts SUI
iicieEt to constitute Il cause OF action.
In answer thereto it is held:
l. That where the contract is entire
~ cXecutory and the defendant has part
ed with nothing of value, and where
plaintiffs bring the action promptly up
on discovering that they have been de-
fraudcd, the said action is ST fticient no
ticc of plaintiffs election to rescind such
contract.
.. Where defendants had until the
18th of November to furnish the last
abstract of title. and deposit the deed
in escrow, and the plaintiffs served
their complaint tw~enty-four days there
after. such delay is not fatal to the
bringing of the action as the plaintiffs
| would need some time to look up the
ro,eo,. u.lv fl,n 1oa1 or1 abstract had
not been furnished. to as ascertain whether
or not the defendants had misrepresent-
| ed material statements 70 them in OBJ
tanning their consent to the contract.
| Also the plaintiffs would need time to
consult attorneys, and the attorneys
would needs time to Investigate the facts
and properly prepare the complaint.
>. The allegation Of the complaint
| that one of the plaintiffs was mentally
incapable of transacting business" is not
| given as a reason for resembling the con-
tract, but as a fact going to show fraud
upon the part of the defendants in in
ducing him to sign the contract.
4. The complaint alleges upon infor-
nation and belief that the defendants
have no title to the premises agreed by
| them to be conveyed. In view of the
| fact that the defendants might have had
| title which was not Of record, this is the
only allegation that the plaintiffs could
safely make, and it is held sufficient.
s.. The complaint alleges sufficient
words of scienter, which words are set
forth in the opinion.
6. Complaint examined and held that
it alleges that the plaintiffs relied upon
| the representations Of defendants, and
| the same.
:. Held, that the complaint sufficient
ly alleges that defendants represented
that they would convey to plaintiffs a
one-half interest in the said nursery
| stock.
8. The contract which is attached to
! the complaint. shows that the defendants
agreed to convey a one-half interest in
| said nursery stock. and, when read in
| connection with the complaint, is suf-
ficient to show that such allegations
were material.
3. The complaint alleges that the prop
erty parted with by plaintiffs was worth
$50, 600, and that they have received
| uOllllilS Ill ItluIH. IlllS Is SulllClell al
legation Of damages.
10. Held that the complaint alleges
that the plaintiffs relied upon the false
representations of the defendant.
II. The complaint alleges that the de-
PENDANTS had wrongfully obtained pos
| session Of the deed from plaintiffs, which
was to be deposited in escrow, and ask
ed that said deed be cancelled. Held,
| not to be a statement of a conclusion
Of law. .... .'.
IL. Where the complaint shows that
the" defendants have parted with moth
ing Of value. it is unnecessary to allege
that they have been placed in status
quo. ,- -..r..... ~,
10. Not grounds for demurrer that
| the complaint does not show that the
defendants knew more about the value
Of the nursery stock han did the plain
| tiffs. -.
"A. Defendants claim that no fraud
could have been inflicted upon the plain
tifrs by the making out Of an executory
contract. The fraud alleged is sufficient
to justify the court in setting aside the
contract itself, n the further allega-
ton that defendants have %wrongfully OBJ
tanned possession Of a deed to plain
tiff's land is sufficient allegation of
damages to sustain the complaint.
Appeal from the District court of Ward
county; Leighton, J.
Affirmed. Opinion of the court by
Burke, J.
F. E.. Lambert and George A. MCGEE
for appellants.
Noble, Blood & Adamson for respond
ents.