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Keywords

contractplaintiffdefendantdamagesappeal
contractplaintiffdefendantdamages

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Selman v. Shirley, 161 Or. 582, 85 P.2d 384, 124 A.L.R. 1

Facts

The plaintiffs, S. W. and Nona Selman, entered into a contract on July 1, 1933, to purchase 160 acres of land in Benton County for $2,000. They were induced to sign the contract based on representations made by H. E. Shirley that there were at least 4,000 cords of wood on the property, which was later found to be false. After making partial payments and discovering the misrepresentation, the plaintiffs withheld further payments, leading to an ejectment action by the Shirleys. The plaintiffs then filed a suit to correct the property description and recover damages for fraud.

The property with which this suit is concerned is 160 acres of land located in Benton County. In the aforementioned contract, which was executed by its parties (the plaintiffs and the Shirleys) July 1, 1933, the plaintiffs agreed to purchase this property for a consideration of $2,000, payable $500 upon the execution of the contract, and the balance in annual installments of $200, payable October 1 of the ensuing years. Defendant H. E. Shirley was the record owner of the property, and defendant C. G. Blakely was the agent who consummated this transaction. His commission was paid by H. E. Shirley, and we are satisfied that he was the defendants', and not the plaintiffs', agent.

Issue

Did the defendants commit fraud by misrepresenting the amount of timber on the property, and are the plaintiffs entitled to damages?

The findings state: “The defendant, H. E. Shirley, knowingly and falsely represented to plaintiff that there was at least 4000 cords of wood on said premises; that said representations was false and was made by defendant H. E. Shirley with the intention of inducing plaintiffs to purchase said premises; that the plaintiffs in purchasing said premises relied upon said representations.”

Rule

A defrauded party is not required to rescind the contract to sue for deceit, and if they affirm the contract, they do not waive their right to recover damages for the fraud.

It has been many times stated by this court that a defrauded party is not required to rescind the contract in order to sue for deceit, and that if he affirms the contract he does not thereby waive his right to recover damages for the fraud which had been practiced upon him.

Analysis

The court found that the plaintiffs were deceived into purchasing the property based on H. E. Shirley's false representation regarding the timber. The evidence supported the claim that the plaintiffs relied on these misrepresentations when signing the contract. The court also noted that the plaintiffs had made payments under the belief that they were purchasing a property with significant timber value, which was not the case.

We repeat that, in our opinion, the record clearly supports the aforementioned finding of the circuit court which declares that the plaintiffs were deceived into the purchase of this property through a false representation that there were 4000 cords of wood upon the property possessing a stumpage value of fifty cents per cord.

Conclusion

The court modified the decree and remanded the case, indicating that the plaintiffs were entitled to seek damages for the fraud committed by the defendants.

The court modified the decree and remanded the case, indicating that the plaintiffs were entitled to seek damages for the fraud committed by the defendants.

Who won?

The plaintiffs prevailed in the appeal as the court recognized their claims of fraud and allowed them to seek damages.

The plaintiffs, S. W. and Nona Selman, husband and wife, visited the property in company with Blakely May 23, 1933, a few hours before the aforementioned letter was written, but neither they nor he had been upon the property before.

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