Hills v. Campbell ( 1918 )

Mr. Justice Benson

delivered the opinion of the court.

1. The evidence in this case presents a startling array of contradictory testimony which cannot, in any manner, be reconciled. Upon nearly all of the material issues tbe conflict is so glaring and complete that we are compelled to say that one line of testimony or the other must be willfully false. In many instances it is not possible to analyze the evidence in such a manner as to solve the mystery by applying the test of reasonableness or inherent probability. We shall, therefore, waste neither time nor space with an elaborate discussion of the evidence but shall content ourselves with a generalization of conclusions. The record does not sustain the contention that plaintiff purchased the personal property from defendant but rather than she got it from the Chrudinskys and so understood it and, with this, we dismiss all questions relating to the furniture and other chattels. Regarding the plumbing, we think it is clearly established that it was sufficient and satisfactory and that the difficulty in respect to it arose from the habit of the tenants in permitting various kinds of waste to get into the pipes, thereby choking them and retarding the flow toward the sewer. The other fraudulent representations are not established by a preponderance of the evidence, unless it be in relation to the bedbugs. With reference to this phase of the case, it may be said that there is no dispute as to the fact that the apartments were equipped with an exceptionally large and vigorous supply of this extremely unpleasant vermin, and it is also established that the defendant was informed upon the subject prior to his dealings with the plaintiff. He very positively denies, however, that the insects were mentioned during the negotiations with the plaintiff. The clash upon this disputed point is of small importance now for the plaintiff is very positive that she discovered their presence, and the falsity of defendant’s alleged representations in regard to them, on the first night she occupied the premises, which was on January 15th. During the first week of February, she paid a second month’s rent in advance without making any demand for rescission upon that or any other ground. Indeed, the first reliable evidence of an intention to rescind is found in a letter written by her to the defendant, dated May 15th, which demanded as a part of the settlement a payment by him of the $1,600 which she had paid for the furniture and other chattels. The payment of rent, after full knowledge of the fraud, acts as a complete waiver of the right to rescind: T. B. Potter Realty Co. v. Breitling, 79 Or. 293, 305 (155 Pac. 179); 4 R. C. L., p. 514.

(171 Pac. 565.) Mr. W. E. Richardson, Mr. 8. T. Richardson and Mr. A. R. Mendenhall, for the petition. Mr. Frank 8chlegal, Mr. Claude Strahan and Mr. Waldemer Seton, contra.

Taking into consideration all the established facts, we conclude that neither party is entitled to recover costs in either court; otherwise, the decree is affirmed.

Affirmed. Rehearing Denied.

Mr. Chief Justice McBride, Mr. Justice Burnett and Mr. Justice Harris concur.