Leipold v. Epler ( 1915 )

Mr. Justice McBride

delivered the opinion of the court.

6. Contracts, § 1^*—what constitutes simple contract. An undertaking of a grantee recited in a deed to assume and pay incumbrances on the property purchased is a simple contract. 7. Contracts, § 7*—when fraud a defense. Fraud is a good defense to an action on a simple contract. 8. Vendor and purchaser, § 35*—when fraud fatal to title. Fraud practiced by the party seeking the remedy upon him against whom it is sought, and not that which is the subject-matter of the action or claim, is fatal to his title. 9. Principal and agent, § 155*—when principal may not receive benefit of unauthorized act of agent. A principal cannot receive the benefit of unauthorized acts of his agent which are in fact fraudulent. 10. Principal and agent, § 131*—when principal liable for benefits due to unauthorized acts of agent. A principal who has actually received the benefit of money procured by the unauthorized acts of his agent will be liable in the amount he has received the benefit of. 11. Fraud, § 115*—when evidence sufficient to sustain finding that agreement by grantee to assume mortgages was fraudulently procured. In an action by a grantor to recover for breach of an agreement recited in a deed whereby the grantee assumed certain mortgages on the property conveyed, where the defense to the action was fraud and where the evidence was conflicting, evidence examined and held that a finding by the jury that the agreement was procured by a fraudulent scheme concocted by the grantor and his agent was not manifestly wrong. 12. Mortgages, § 226*—when evidence sufficient to sustain finding that grantee did not intentionally assent to agreement to assume incumbrances. In an action by a grantor to recover for breach of an agreement recited in a deed whereby the grantee assumed certain mortgages on the property conveyed, evidence examined and held to warrant the jury in finding that defendant never knowingly and intentionally assented to the contract recited. 13. Fraud, § 133*—when instructions on fraud as defense to contract not erroneous. Instructions framed on the theory that the presence of actionable fraud inducing damage to any extent is a complete defense to an action on a simple contract are not erroneous. 14. Instructions, § 118*—when instruction on effect of fraudulent representations by agent of vendor in procuring agreement to assume incumbrances not erroneous. In an action to recover for breach of an agreement recited in a deed whereby the grantee assumed certain mortgages on the property conveyed, where the defense was that the agreement was procured by a fraudulent scheme concocted by plaintiff and his agent, an instruction relative to the effect of the fraudulent representations of plaintiff’s agent in pursuance of the scheme is not erroneous although there is no direct evidence that plaintiff had anything to do with that portion of the scheme to which the representations related, if there is evidence that plaintiff and his agent were co-operating generally in the transaction by which plaintiff was defrauded.

Boggs, J., dissenting.