Herrin v. Libbey , 36 Me. 350 ( 1853 )

Rice, J. —

The writ, pleadings, lease and its counterpart, which make part of this case, have not come into the hands of the Court. The defence is, that the lease was obtaiued by-fraud and that the rent reserved was increased by the fraudulent practices of the plaintiff and his agent.

In answer to interrogatories, put to them in writing, the jury found, that the lease was obtained by false and fraudulent representations, and that neither party had waived their rights to take advantage of such representations.

The defendants’ counsel requested the presiding Judge to instruct the jury that if they found the lease was obtained of the defendants by false and fraudulent representations, this action could not be maintained. This was refused.

The rights of a party who has been defrauded in making a contract, are, on the discovery of the fraud, within a reasonable time to rescind the contract, and restore the parties to their former condition, or to affirm the contract, and claim compensation in damages for the injury he has sustained by reason of the fraud.

In the absence of the papers referred to, it does not distinctly appear whether the defendants, by their acts, had lost their right to rescind the contract, though from the time that had elapsed from the date of the lease before the action was commenced, and from the course of remark by the plaintiff’s counsel, in his argument, it may be inferred that such was the fact. There is no evidence of any attempt to rescind, or that the defendants did not have the use and occupation of the premises leased, until the expiration of the term, specified in the lease.

But the Judge did instruct the jury that if they should find that the lease was obtained of the defendants by false and fraudulent representations, they might estimate the damages which the defendants had sustained, by such false and fraudulent representations, and deduct that sum from such amount, as they should find due, if any, the plaintiff for the breach in the covenants in the lease, and return their verdict for the balance if there should be any.

Under the state of facts that existed, the requested instruction was properly withheld, and those given were correct.

The terms of the lease were by agreement of the parties to be determined by referees.

The defendants offered to prove, that Timothy Herrin the authorized agent of the plaintiff, represented to said arbitrators that the amount of the rent was to be paid in tavern keeping, and that this representation induced the arbitrators to fix the rent at a higher rate than they otherwise would have done.

The defendants also offered to prove that all that part of the lease which relates to ploughing and seeding down ten acres of 'the demised premises, was not any part of the award of the referees, though supposed to be so at the time of the execution of the lease. This was properly rejected, as there is no evidence tending to show that they were misled in the matter by the plaintiff or his agent, or that they were not in possession of all the information as to the action of the referees which was in the possession of the plaintiff, or that they in any manner relied upon the plaintiff’s representations. The means of information upon that point were equally open to both parties.

The evidence offered, as to what would be a fair rent of the premises, was also rightly rejected. The questions presented to the jury were, first, whether the contract had been obtained by fraud; and second, how much damage had the defendants suffered by reason of the fraud of plaintiff, if any had been committed by him. On that point, appropriate instructions were given by the Judge.

Any concealed attempt by either party, by false affirmation or fraudulent concealment of material facts, to influence the judgment of the referees, by which to increase or diminish the amount of rent to be paid, would be such a fraud upon the other party as would entitle them, if thereby defrauded, to relief. It does not, however, appear that the representations of the plaintiff’s agent were not true in point of fact, nor does it appear that they were not made in the presence, and with the knowledge of the defendants. The testimony was therefore properly excluded.

The depositions were properly admitted. The notice was in conformity to the provisions of sections 6 and 7 of c. 133, R. S., and the requirements of 13th rule of this Court, 9 Greenl. 298. The records of the Court is made the evidence on which parties may rely to determine who are attorneys in a given case. Hodgdon & Madigan were the defendants’ attorneys, as appeared by the record, and by the express terms of the rule referred to, notice to them while their names thus stood upon the record, was good and sufficient. Exceptions overruled. Judgment on the verdict.

Shepley, C. J., and Howard and Hathaway, J. J., concurred.