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eBook details

• Title: Howe v. Messimer
• Author : Supreme Court of Montana
• Release Date : January 08, 1929
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 58 KB

Description

Promissory Notes ? Vendor and Purchaser ? Fraud ? Complaint ? Insufficiency ? Deeds ? Faulty Description of Real Property ? When Sufficient ? Evidence ? Declarations Against Interest ? Impeachment of Declarant ? What Does not Constitute. Promissory Notes ? Fraud ? Evidence ? Declarations Against Interest ? What not Objectionable as Impeachment of Declarant. 1. In an action on promissory notes given for the purchase of real property in which defendant, among other things, relied upon fraudulent representations on the part of the vendor, declarations against interest made by defendant were properly admitted in rebuttal as against the objection that they tended to impeach defendant without a proper foundation having first been laid; they were admissible as original evidence although they may have had a tendency to discredit the declarant, not intended for purpose of impeachment, and it, therefore, was not necessary to lay a foundation as required by section 10669, Revised Codes 1921. Same ? Evidence ? Plaintiff in Case in Chief not Required to Negative Affirmative Defenses. 2. Plaintiff in an action on promissory notes in which defendant set up affirmative defenses, was not required, in his case in chief, to negative such defenses. Deeds ? Description of Property ? When Sufficient as Against Attack for Uncertainty. 3. That part of a deed which relates to the description of the property should be liberally construed so as to make the instrument effective, and a court will declare it void for uncertainty only when, after resorting to oral proof, it still remains mere matter of conjecture what was intended by the instrument; on the other hand, if, taking all the facts appearing on the face of the deed and the legal presumptions naturally flowing therefrom, the true description may be supplied by aid of proper averments and proof, it will be held sufficient. Same ? Defective Description of Property Held Sufficient upon Elimination of Superfluous Words. 4. Where a deed described a lot as "lot eleven of block four of High School Park Tract, as per plot in Book Four of Plats on page forty-four of the Public School of" a certain county and state, the description could be readily ascertained by eliminating the words "of the Public School" and, therefore, such defect was not fatal under the last above rule. - Page 305 Vendor and Purchaser ? Fraudulent Representations ? Complaint ? Insufficiency. 5. An alleged fraudulent representation by vendor that a lot was worth in excess of and would readily sell for more than a given amount, was insufficient to charge fraud in the absence of the further averments that he did not believe the statement to be true, or knew it to be false, or was not warranted by the information he then had and of a showing of facts that the complaining purchaser had a right to rely upon the representation, and in the absence of the further averment that the lot was not worth what the vendor said it was. Same ? Fraud ? Promise Without Intention of Performing it ? Plaintiff must Prove Absence of Such Intention in Defendant. 6. One charging fraud by reason of making a promise without any intention of performing it, must prove that the maker of it had no such intention when he made it, the mere showing that it was not performed being insufficient to prove fraud.

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