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of the property and harvested and used the he believed the representations made by Pace crops of 1907; that, when the first install- and Woods, relied on them, and parted with ment note fell due, Ott was unable to meet his money on the faith of such representathe payment; that he was permitted to with- tions. draw from the trustee certificates represent- It is then alleged: “Sixth. That, upon ing 55 shares of the mill stock, and these he the discovery of the falsity of the said sold for $6,033.20 and paid the delinquent false and fraudulent representations, plaininstallment; that on July 1, 1908, a new con- tiff demanded of the defendants that they tract was entered into between Ott and the make him whole and restore him to his poPace-Woods Improvement Company, a cor- sition of August 20, 1907, and prior to the poration; that this new contract recites the signing of said contract of August 20, 1907, existence of the former one; that the corpo- and the payments made by him, as hereinberation had succeeded to all the rights and fore set forth, and offered to deliver said interests of Pace and Woods, and provides premises and everything of value received by that the contract of August 20, 1907, “is here him from said defendants, all of which said by set aside and annulled and all parties re- defendants failed and refused to do." In leased therefrom"; that the new contract paragraph 8 plaintiff alleges that on Decemprovides for the release of the remaining ber 23, 1909, he again demanded of Pace and shares of the mill stock to Ott, and fixes Woods and the defendant corporation that the payment of the balance due on the prop- the money which he had theretofore paid be erty in smaller installments and extending returned to him, and that the contracts be over a longer period of time; and that on canceled, and notified the defendants that December 23, 1909, Ott gave up possession of he rescinded such contracts, and thereupon the property. The institution of this suit surrendered up the premises, improved in followed immediately.

value to an extent greater than the value of It is alleged in the complaint that the the crops taken by him. Possibly, the alfirst contract was procured by false repre- legations of paragraph 6 above can be refersentations on the part of Pace and Woods, red in point of time to one of two dates : in that they represented to plaintiff that the (1) To the time when plaintiff harvested and soil of the land in question was rich and marketed the crop of 1907, which was some productive; that the crops then on the place time prior to February 20, 1908; or (2) to (August, 1907) consisted of 500 tons of hay December 23, 1909, the date mentioned in of the value of $5.000, 600 sacks of potatoes paragraph 8 above. But, if they cannot be of the value of $600, 4,000 bushels of oats of construed as referring to either of the dates the value of $2,000, and 8 acres of peas of mentioned, then it cannot be gathered from great value for feeding stock; and that the the complaint when plaintiff discovered that average yearly crops theretofore raised on he had been defrauded, or when he made the the premises equaled in amount and value demand for restoration. In paragraph 4 of the crops then on the premises. It is alleg- the complaint appears this language: "And ed that these representations were false; the compelling this plaintiff, under duress that the soil was rich and productive only in and fear as herein alleged, and by threats spots; that much of it was gumbo, in which of instituting bankruptcy proceedings against nothing but greasewood and noxious weeds him, and by false promises made by said dewould grow; that the crops on the premises fendants, Pace and Woods, to secure some in August, 1907, consisted of only 150 tons one to purchase said premises, which promof hay, which was practically valueless on ises were made by said defendants without account of the presence of large quantities of any hope or expectation or intention of fulnoxious weeds and grasses which rendered it filling them or attempting so to do, but simunfit for stock or other purposes, only 1,385 ply as an additional means of getting this bushels of oats and 100 sacks of potatoes, plaintiff to enter into said contract with said and that all of the crops did not exceed in corporation, and as additional means of furvalue $800; that the statement of the amount ther entangling this plaintiff and making it and value of the crops theretofore raised on more difficult for him to secure relief.” the premises was false, and that the aver- These words baffle our attempts to give them age yield of said premises theretofore had meaning. They do not appear to have any not exceeded in value $800, and that the en- connection with the allegations preceding or tire property did not exceed in value $5,000; following them. They do not constitute a that the plaintiff skillfully and zealously cul- sentence. There is not any subject, and they tivated the premises, but that they could not appear to be meaningless. be made to yield more than $800 per year, [1] If, then, the allegations of paragraph which sum was inadequate to defray the ex-6 above cannot be construed as referring in pense of cultivation and care; and that plain- point of time to either date we have mentiontiff placed on the premises improvements of ed, the special demurrer should have been the value of $1,257 and paid taxes and as- sustained, for the complaint is open to the sessments to the amount of $247.05; that charge of being anbiguous, unintelligible, plaintiff was not familiar with the country and uncertain. As against a general deor with the character of the soil or with the murrer, it may be that the allegations of parfacts as to the yield of the premises; that agraph 6 above are sufficient (Taylor v. National Bank, 6 S. D. 511, 62 N. W. 99); but, | Raw, 7 Kan. App. 17, 51 Pac. 789; Lee v. when attacked by a special demurrer, they McClelland, 120 Cal. 147, 52 Pac. 300. fail to meet the requirements of the law. [3] But it is alleged that the new contract Since plaintiff is seeking a rescission of these was procured by duress, and apparently it is contracts, and the statute (Rev. Codes, $ sought to charge that the payment of $6,5065) requires him to act promptly upon dis- 033.20 was also made under dtress. In the covering the facts which entitle him to re- brief of appellant his counsel says that upon scind, defendants had a right to know when the complaint "it appears clearly that he such discovery was made; for, though plain- entered into this second contract to prevent tiff may have had just ground for rescission, the forfeiture of his mill stock, which under bis right might be lost by laches.

the contract of purchase would be delivered [2] But, assuming that the allegations of by the bank to the defendants Pace and paragraph 6 can be referred in point of time Woods (or the defendant Pace-Woods Imto one of the dates we have mentioned, we provement Company as the successor in inmay then treat the language quoted from terest of Pace and Woods) as their absolute paragraph 4 as surplusage. First, then, as- property on the default of the plaintiff to sume that the plaintiff's allegations in par- meet any note when due.” The first contract agraph 6 are construed to refer to the time provides for its termination upon breach by when he harvested and sold the crop of 1907, Ott. It makes time of the essence of it, and which transpired on or before February 20, provides that, if the installments are not 1908, and we find from the complaint that paid promptly when due, the mill stock shall thereafter he secured permission to withdraw be delivered to Pace and Woods as their ab55 shares of the hypothecated mill stock; solute property. According to the complaint, that he sold it and applied the proceeds to then, Pace and Woods threatened to do only the payment of the installment due under things which under the contract they had a the first contract; that on July 1, 1908, he right to do, and threats of that character do entered into the new contract which in terms not constitute duress. Rev. Codes, $ 4975; annuls the first one, and by the terms of Kimball Co. v. Raw, above; McClair v. Wilwhich he gained advantages in having the son, 18 Colo. 82, 31 Pac. 502; 7 Current hypothecated securities returned to him, and Law, 1201. in securing more advantageous terms for the [4] Second, let us assume, however, that payment of the remaining installments. Dur- the allegations of paragraph 6 above should ing all this time, plaintiff remained in pos- be construed as referring in point of time session of the premises and used them and to December 23, 1909 (though this assumption appropriated the 1907 crops to his owu use. seems absolutely unwarranted), and we have Sirce fraud in the inducement of a contract this situation: Plaintiff harvested and mardoes not make it void, but only voidable keted the crop of 1907, and, before the first (Turk v. Rudman, 42 Mont. 1, 111 Pac. 739), installment under the original contract fell it was within the power of Ott to rescind or due, was in full possession of the facts that to treat the first contract as valid (1 Page ou the representations made by Pace and Woods Contracts, $ 139; 9 Cyc. 432, 436); and his with respect to the crop of 1907 were untrue. continuing in possession of the property and In Ruhl v. Mott, above, the Supreme Court of his payment of the delinquent installment California said: “It is true that where one after discovering the fraud amounted to is justified in relying, and in fact does rely, an affirmance of the first contract and con- | upon false representations, his right of acstituted a bar to a rescission (Ruhl v. Mott, tion is not destroyed because means of knowl. 120 Cal. 668, 53 Pac. 304; Oppenheimer v. edge were open to him. In such a case no Clunie, 142 Cal. 313, 75 Pac. 899; Greenwood duty in law is devolved upon him to employ v. Fenn, 136 Ill. 146, 26 N. E. 487; Crooks such means of knowledge. But, when there v. Nippolt, 44 Minn. 239, 46 N. W. 319; 2 after he discovers that he has been put upon Pomeroy's Equity Jurisprudence, $ 897; 9 and defrauded as to one material matter, noCyc. 436). In Grymes v. Sanders, 93 U. S. tice is at once brought home to him that a 55, 23 L. Ed. 798, the rule is stated as fol- man that has been false in one thing may lows: "Where a party desires to rescind up- have been false to him in all, and it becomes on the ground of mistake or fraud, he must, incumbent upon him to make full investigaupon the discovery of the facts, at once an- tion. A defrauded party has but one elecnounce his purpose and adhere to it. If he tion to rescind, and he must exercise that be silent, and continue to treat the property election with reasonable promptness after as his own, he will be held to have waived discovering the fraud.

Delay in the objection, and will be conclusively bound rescission is evidence of a waiver of the by the contract, as if the mistake or fraud fraud, and of an election to treat the contract had not occurred. He is not permitted to as valid. Any acts evincive of an intent to play fast and loose. Delay and vacillation abide by the contract are evidence of an afare fatal to the right which had theretofore | firmance of the contract, and of a waiver of subsisted.” So, also, the substitution of the the right of rescission." But plaintiff furnew contract for the old one amounted to a ther proceeded in possession of the premises, waiver of the fraud which entered into the planted the crops for 1908, made payment execution of the old one. Kimball Co. v. of the installment which had been delinquent

*

since February 20th of that year, entered | Seabury, 23 R. I. 543, 51 Atl. 208), he fails into the new contract of July 1st, harvested and marketed the crop of 1908, planted and harvested the crop of 1909, and not until another payment was about to become due did de contend that he had been defrauded into making either contract.

to state what, if any, efforts he made, when he discovered that the representations were false, or whether these representations alone induced him to enter into the contracts. He continued in possession of the property for three seasons, harvested three crops, and ap

Our conclusion is that the complaint is open to the objections raised by the general and special demurrer, and that the trial court's ruling was correct.

The judgment is affirmed.
Affirmed.

BRANTLY, C. J., and SMITH, J., con

cur.

[5] Thus far we have treated the allega-propriated them to his own use, and, in the tions of the complaint as charging action- absence of allegations showing some excuse able fraud in the particulars mentioned; but for the delay in claiming that he had been most of the charges are altogether insuffi- defrauded, we think his right, if any he had, cient. In Butte Hardware Co. v. Knox, 28 should be held to be barred by laches; that Mont. 111, 72 Pac. 301, this court said: he has failed to meet the requirements of "Mere expressions of opinion or of judgment the statute above which prescribes the condo not except in particular cases which ditions upon which he might have rescinded must be shown by the pleading constitutes ac- the contracts. Ruhl v. Mott, above. tionable fraud or false representations. Statements made by the owner of property as to the superior kind, quality, or character of his possessions do not of themselves constitute actionable fraud or false representations, though such statements may not accord with the truth." The only false representations which it is alleged Pace and Woods made are: (1) That the proceeds from the sale of the crops would meet the deferred payments as they accrued; (2) that the crops on the premises in August, 1907, were of certain quantity and value; (3) that the soil FLAHERTY v. BUTTE ELECTRIC RY. CO. was rich and productive; and (4) that the yearly average yield from the premises there tofore had been 500 tons of hay of the value of $5.000, 600 sacks of potatoes of the value of $600, 4,000 bushels of oats of the value of $2,000, and 8 acres of peas of great value for feeding stock. It is perfectly apparent at once that the first and second statements, if made, were nothing but expressions of opinion (1 Page on Contracts, § 98), and the same is generally true of representations of the character of the third one (Butte Hardware Co. v. Knox, above; Tryce v. Dittus, 199 Ill. 189, 65 N. E. 220; 1 Page on Contracts, § 96).

(43 Mont. 141)

et al. (Supreme Court of Montana. March 29, 1911.) 1. PLEADING (§ 229*)—AMENDMENT-RIGHT TO

AMEND.

It fairly appears from the complaint that plaintiff was in Whitehall at or prior to the time the first contract was executed, and the transaction itself brought to his notice such facts as to put him on inquiry as to the quality of the soil. In fact, so far as the allegations of the complaint are concerned, plaintiff had the same opportunity to examine and determine the character of the soil before

the contract was made as he had afterwards. In the absence of any special circumstances pleaded tending to give a different character to the representations 1, 2, and 3 from that which appears on their face, we may dismiss them as not sufficient to show actionable fraud; and we have left but the statements attributed to Pace and Woods, as to the extent and value of the crops theretofore grown on the premises. Assuming, as we may do, that the plaintiff was entitled to a reasonable opportunity to determine the truth or falsity of those statements (Charbonnel v.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1268, 1269; Dec. Dig. § 329.*]

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Amendments are allowed with great liberality under the statute, if they do not change the nature of the action or mislead the adverse party to his prejudice.

AMENDMENT

[Ed. Note.-For other cases, see Pleading, Cent. Dig. § 591; Dec. Dig. § 229.*] 2. PLEADING (§ 248*) NEW CAUSE OF ACTION. In an action for damages against a street car company for striking plaintiff's child, the original complaint alleged negligence by the motorman in failing to stop the car before striking the child, and the amended complaint alleged negligence in failing to keep a proper lookout, whereby he could have seen the child and avoided the injury. Held, that the amended complaint did not state a different cause of action from that originally alleged, and was properly allowed.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 686-709; Dec. Dig. § 248.*] 3. MASTER AND SERVANT (§ 301*)-MASTER'S LIABILITY-THEORY OF LIABILITY.

Under the rule respondeat superior, to charge one for another's negligent act, the person charged must be the superior to him doing the negligent act.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1210-1216; Dec. Dig. 8 301.*]

4. MASTER AND SERVANT (§ 329*)—INJURIES— ALLEGATIONS OF COMPLAINT RELATION

SHIP.

In alleging the relationship of master and servant, the complaint need only allege those facts necessary to be proven in order to establish such relationship.

HOLLOWAY, J. A statement of the facts of this case will be found in the opinion upon the former appeal. Flaherty v. Butte Electric Ry. Co., 40 Mont. 454, 107 Pac, 416, 135 Am. St. Rep. 630. Upon the return of the cause to the district court, plaintiff amended his complaint, and the issues being joined a trial was had, which resulted in a verdict and judgment in his favor for

6. STREET RAILROADS (§ 110*) LIABILITY TO THIRD PERSON-ALLEGATIONS OF COM-$25,000. Defendants have appealed from the judgment and from an order denying them

5. MASTER AND SERVANT (§ 330*)-ACTIONEVIDENCE-RELATIONSHIP.

That a vehicle, street car, etc., by the negligent management of which plaintiff was injured, was in charge of a certain person when he was injured is prima facie evidence that such person was the servant of the owner.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dec. Dig. 330.*]

PLAINT RELATIONSHIP.

In an action against a street car company a new trial. for injuries by striking a child on the track, the complaint alleged that at the time and place of the injury a certain person was in charge of one of defendant's cars as conductor, and was driving the car as motorman, and not acting in his usual capacity as conductor, doing so with defendant's knowledge and consent. Held, that the complaint sufficiently alleged that such person was defendant's servant at the time of the injury, so as to make applicable the rule of respondeat superior.

[2] The complaint as originally drawn charged negligence in the operation of the car which resulted in the injury, particularly in that Le Sage, the motorman at the time, failed to turn off the electric current, apply the brakes, and stop the car before striking the child. Upon the former appeal we held that the evidence failed to prove the spe cific act of negligence thus pleaded. The amendment made to the complaint consists in substituting for the allegation of the specific act of negligence in failing to apply the brakes, etc., an allegation that Le Sage failed to keep any vigilant or proper lookout, whereby he might have seen the child and avoided the injury.

A motorman must exercise reasonable and ordinary care to discover persons on or near the track in time to avoid injuring them, and

is negligent for his failure to do so.

It is now insisted that the so[Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.*]| called amendment was in fact the substitu8. STREET RAILROADS (§ 110*)—NEGLIGENCE- tion of a different cause of action. ACTION-ALLEGATIONS-PROXIMATE CAUSE. [1] There cannot be any question as to the

Allegations of the complaint, in an action against a street car company for injuries to a child on the track, that the motorman was negligent in failing to keep a proper lookout, and "that by reason of the negligence of said defendant" plaintiff was injured, sufficiently alleged the motorman's negligence as the proximate cause of the injury.

[Ed. Note. For other cases, see Street Railroads, Dec. Dig. § 110.*]

7. Street Railroads (§ 93*)—InjuRIES-NEG

LIGENCE.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 224; Dec. Dig. § 110.*]

9. Street RailROADS (§ 117*)-INJURIES-ACTION-JURY QUESTION-UNAVOIDABLE ACCI

DENT.

Where, in an action for injuries by being struck by a street car, the evidence was sharply conflicting as to whether the motorman's vision of the injured person was unavoidably obscured, the question of whether the injury was unavoidable was for the jury.

general rule of law applicable in such cases. In Leggat v. Palmer, 39 Mont. 302, 102 Pac. 327, this court said: "Under the statute, to allow amendments is the rule; to deny them is the exception. The rule observed by this court has always been to allow them with great liberality, where they do not change the nature of the action, or mislead the adversary to his prejudice; its application going even to the extent of permitting them aft er verdict. and judgment." The only difficulty arises in applying the rule to the facts of the particular case. "To constitute a cause of action for a tort, then, the plaintiff's right must have been infringed by the wrongful act of the defendant, with the result that

[Ed. Note. For other cases, see Street Rail-plaintiff suffered damages." Dillon v. Great roads, Cent. Dig. § 253; Dec. Dig. § 117.*]

Northern Ry. Co., 38 Mont. 485, 100 Pac.
960. It is alleged in the original and also
in the amended complaints that the negli
gence of the defendants in operating the
May the plaintiff,
car caused the injury.
then, substitute as the charging part of his
complaint one specific act of negligence for
another, without introducing a different cause

of action?

In Kerr v. Grand Forks, 15 N. D. 294, 107

W. M. Bickford, Geo. F. Shelton, Peter Breen, and Chas. A. Ruggles, for appellants. J. E. Healy, M. F. Canning, and Canning & Keating, for respondent.

N. W. 197, the original complaint charged that the injury resulted from negligence of the city in permitting a sidewalk to be constructed in a dangerous manner. The amendment charged that the negligence consisted in permitting the sidewalk to remain in a dangerous condition after the city had notice.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

Appeal from District Court, Silver Bow County; J. M. Clements, Judge.

Action by Wilfred H. Flaherty, by Laura S. Flaherty, his guardian ad litem, against the Butte Electric Railway Company and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Reversed and remanded for a new trial, unless a remittitur is filed, in which case judgment is affirmed as modified, and the order denying a new trial is affirmed.

It was held that this amendment was prop-, in permitting certain boards in a sidewalk erly allowed.

to become loose, whereby plaintiff trippel In Peery v. Quincy, O. & K. C. R. Co., and fell. The amendment charged negli122 Mo. App. 177, 99 S. W. 14, the original gence in permitting the sidewalk to remain complaint charged that the negligence con- in an unsafe condition, by reason whereof sisted in failing to keep a fence in repair. plaintiff stepped upon and broke through a The amendment charged negligence in main- defective board, thereby sustaining the intaining a defective gate. The allowance of jury. In was held proper to allow the this amendment was held proper.

amendment, and in the course of the opinion In Chapman v. Nobleboro, 76 Me. 427, the the court said: "In the case at bar the pleading is not set forth, but in disposing of act or wrong charged was the disregard by the objection to the amendment the court the appellant of its duty to keep its sidesaid: “The first of the amendments is, not walk in safe repair, and in permitting it to a change in, but an addition to, the descrip-be and remain in bad and unsafe repair tion of the alleged defect in the way, and and condition. In the original declaration the second relates to the manner in which the pleader stated the manner in which the the accident happened, leaving the accident condition complained of resulted in the initself and the result of it the same. There jury to appellee. Upon the trial the proof is therefore no change in the cause of action, tended to show the condition complained of either in the alleged defect or the result of was as alleged in the declaration, but that it, and the allowance of the amendments the manner of appellee's injury was not as was within the discretion of the presiding alleged, but in the manner stated in the justice."

amendment. The act or wrong of appellant In Davis v. Hill, 41 N. H. 329, the original which resulted in the injury was the same declaration charged negligence in permitting in the original declaration as charged by a roadway to be uneven and incumbered the amended declaration; the mode or manwith snow and ice, by reason whereof the ner in which it resulted in the injury was injury resulted. The amendment charged stated differently.” negligence in failing to maintain a railing or The theory of all these cases is that, so barrier along the road, by reason of which long as the plaintiff adheres to the injury the injury resulted. It was held that this originally declared upon, he may amend his amendment was properly allowed.

pleading by alleging that the injury was In Montgomery Traction Co. v. Fitzpatrick, caused in a different manner, without infring149 Ala. 511, 43 South. 136, 9 L. R. A. (N. ing the general rule against introducing a S.) 851, the original complaint charged that different cause of action. 1 Ency. Pl. & Pr. plaintiff was wrongfully ejected from a 564. street car on the Court Street line by the In More v. Burger, 15 N. D. 345, 107 N. W. conductor of the

The amendment | 200, it is well said: “The test generally charged that the conductor on the Electric adopted to determine whether an amendment Park line negligently tore and mutilated is permissible is whether a recovery upon the plaintiff's transfer ticket, by reason where- cause of action set up by the amendment of he was ejected by the conductor of the would be a bar to a suit upon the other." Court Street line. It was held that this The same injury is described in the original amendment was proper.

and in the amended complaint in this inIn Salmon v. City Electric Ry. Co., 124 stance, and relief for that injury is sought in Ga. 1056, 53 S. E. 575, the original complaint each pleading. The measure of damages is charged negligence on the part of the rail the same in each instance, and that a judg. way company in placing certain poles too ment recovered upon either pleading would near the track. The amendment offered bar recovery upon the other admits of no .charged negligence on the part of the con- doubt. We approve the action of the disductor in failing to warn the plaintiff of trict court in allowing the amendment, as the proximity of the poles to the track. It well within the rule heretofore announced was held error to refuse the amendment. by this court.

In Smith v. Bogenschultz, 19 S. W. 667, [3] 2. It is insisted that the complaint does 20 S. W. 390, 14 Ky. Law Rep. 305, the orig- not state a cause of action against the railinal complaint charged that plaintiff's in- way company. It must be admitted at once jury was caused by the jostling of a ladle that the liability of the railway company containing molten iron, occasioned by the for the negligent act of Le Sage is grounded narrowness of the passageway through which in the rule respondeat superior, and in order the ladle had to be carried. The amend- for that rule to apply the person sought to ment charged that the injury resulted from be charged must stand in the relation of the negligence of defendant in furnishing a superior to the person doing the wrongful act. defective ladle. It was held error to refuse 1 Thompson's Commentaries on the Law of the amendment.

Negligence, $ 578; King v. New York CenIn City of Evanston v. Richards, 224 Ill. tral & H. R. R. Co., 66 N. Y. 184, 23 Am. 444, 79 N. E. 673, the original declaration Rep. 37; Hexamer v. Webb, 101 N. Y. 377, 4 pleaded negligence on the part of the city X. E. 755, 54 Am. Rep. 703. It is urged that

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