of the property and harvested and used the | he believed the representations made by Pace crops of 1907; that, when the first install- and Woods, relied on them, and parted with ment note fell due, Ott was unable to meet his money on the faith of such representathe payment; that he was permitted to with- tions. draw from the trustee certificates representing 55 shares of the mill stock, and these he sold for $6,033.20 and paid the delinquent installment; that on July 1, 1908, a new contract was entered into between Ott and the Pace-Woods Improvement Company, a corporation; that this new contract recites the existence of the former one; that the corporation had succeeded to all the rights and interests of Pace and Woods, and provides that the contract of August 20, 1907, "is hereby set aside and annulled and all parties released therefrom"; that the new contract provides for the release of the remaining shares of the mill stock to Ott, and fixes the payment of the balance due on the property in smaller installments and extending over a longer period of time; and that on December 23, 1909, Ott gave up possession of the property. The institution of this suit followed immediately.

It is then alleged: "Sixth. That, upon the discovery of the falsity of the said false and fraudulent representations, plaintiff demanded of the defendants that they make him whole and restore him to his position of August 20, 1907, and prior to the signing of said contract of August 20, 1907, and the payments made by him, as hereinbefore set forth, and offered to deliver said premises and everything of value received by him from said defendants, all of which said defendants failed and refused to do." In paragraph 8 plaintiff alleges that on December 23, 1909, he again demanded of Pace and Woods and the defendant corporation that the money which he had theretofore paid be returned to him, and that the contracts be canceled, and notified the defendants that he rescinded such contracts, and thereupon surrendered up the premises, improved in value to an extent greater than the value of the crops taken by him. Possibly, the allegations of paragraph 6 above can be referred in point of time to one of two dates: (1) To the time when plaintiff harvested and marketed the crop of 1907, which was some time prior to February 20, 1908; or (2) to December 23, 1909, the date mentioned in paragraph 8 above. But, if they cannot be construed as referring to either of the dates mentioned, then it cannot be gathered from the complaint when plaintiff discovered that he had been defrauded, or when he made the demand for restoration. In paragraph 4 of

It is alleged in the complaint that the first contract was procured by false representations on the part of Pace and Woods, in that they represented to plaintiff that the soil of the land in question was rich and productive: that the crops then on the place (August, 1907) consisted of 500 tons of hay of the value of $5.000, 600 sacks of potatoes of the value of $600, 4,000 bushels of oats of the value of $2,000, and 8 acres of peas of great value for feeding stock; and that the average yearly crops theretofore raised on the premises equaled in amount and value the crops then on the premises. It is alleg- the complaint appears this language: "And ed that these representations were false; that the soil was rich and productive only in spots; that much of it was gumbo, in which nothing but greasewood and noxious weeds would grow; that the crops on the premises in August, 1907, consisted of only 150 tons of hay, which was practically valueless on account of the presence of large quantities of noxious weeds and grasses which rendered it unfit for stock or other purposes, only 1,385 bushels of oats and 100 sacks of potatoes, and that all of the crops did not exceed in value $800; that the statement of the amount and value of the crops theretofore raised on the premises was false, and that the average yield of said premises theretofore had not exceeded in value $800, and that the entire property did not exceed in value $5,000; that the plaintiff skillfully and zealously cultivated the premises, but that they could not be made to yield more than $800 per year, which sum was inadequate to defray the expense of cultivation and care; and that plaintiff placed on the premises improvements of the value of $1,257 and paid taxes and assessments to the amount of $247.05; that plaintiff was not familiar with the country or with the character of the soil or with the

the compelling this plaintiff, under duress and fear as herein alleged, and by threats of instituting bankruptcy proceedings against him, and by false promises made by said defendants, Pace and Woods, to secure some one to purchase said premises, which promises were made by said defendants without any hope or expectation or intention of fulfilling them or attempting so to do, but simply as an additional means of getting this plaintiff to enter into said contract with said corporation, and as additional means of further entangling this plaintiff and making it more difficult for him to secure relief." These words baffle our attempts to give them meaning. They do not appear to have any connection with the allegations preceding or following them. They do not constitute a sentence. There is not any subject, and they appear to be meaningless.

[1] If, then, the allegations of paragraph 6 above cannot be construed as referring in point of time to either date we have mentioned, the special demurrer should have been sustained, for the complaint is open to the charge of being ambiguous, unintelligible, and uncertain. As against a general demurrer, it may be that the allegations of par

[3] But it is alleged that the new contract was procured by duress, and apparently it is sought to charge that the payment of $6,033.20 was also made under duress. In the brief of appellant his counsel says that upon the complaint "it appears clearly that he

tional Bank, 6 S. D. 511, 62 N. W. 99); but, | Raw, 7 Kan. App. 17, 51 Pac. 789; Lee v. when attacked by a special demurrer, they McClelland, 120 Cal. 147, 52 Pac. 300. fail to meet the requirements of the law. Since plaintiff is seeking a rescission of these contracts, and the statute (Rev. Codes, § 5065) requires him to act promptly upon discovering the facts which entitle him to rescind, defendants had a right to know when such discovery was made; for, though plain- | entered into this second contract to prevent tiff may have had just ground for rescission, his right might be lost by laches.

the forfeiture of his mill stock, which under the contract of purchase would be delivered by the bank to the defendants Pace and Woods (or the defendant Pace-Woods Improvement Company as the successor in interest of Pace and Woods) as their absolute property on the default of the plaintiff to meet any note when due." The first contract provides for its termination upon breach by Ott. It makes time of the essence of it, and provides that, if the installments are not paid promptly when due, the mill stock shall be delivered to Pace and Woods as their absolute property. According to the complaint, then, Pace and Woods threatened to do only things which under the contract they had a right to do, and threats of that character do not constitute duress. Rev. Codes, § 4975; Kimball Co. v. Raw, above; McClair v. Wilson, 18 Colo. 82, 31 Pac. 502; 7 Current Law, 1201.

[2] But, assuming that the allegations of paragraph 6 can be referred in point of time to one of the dates we have mentioned, we may then treat the language quoted from paragraph 4 as surplusage. First, then, assume that the plaintiff's allegations in paragraph 6 are construed to refer to the time when he harvested and sold the crop of 1907, which transpired on or before February 20, 1908, and we find from the complaint that thereafter he secured permission to withdraw 55 shares of the hypothecated mill stock; that he sold it and applied the proceeds to the payment of the installment due under the first contract; that on July 1, 1908, he entered into the new contract which in terms annuls the first one, and by the terms of which he gained advantages in having the hypothecated securities returned to him, and in securing more advantageous terms for the [4] Second, let us assume, however, that payment of the remaining installments. Dur- the allegations of paragraph 6 above should ing all this time, plaintiff remained in pos- be construed as referring in point of time session of the premises and used them and to December 23, 1909 (though this assumption appropriated the 1907 crops to his own use. seems absolutely unwarranted), and we have Since fraud in the inducement of a contract this situation: Plaintiff harvested and mardoes not make it void, but only voidable keted the crop of 1907, and, before the first (Turk v. Rudman, 42 Mont. 1, 111 Pac. 739), installment under the original contract fell it was within the power of Ott to rescind or due. was in full possession of the facts that to treat the first contract as valid (1 Page on the representations made by Pace and Woods Contracts, § 139; 9 Cyc. 432, 436); and his with respect to the crop of 1907 were untrue. continuing in possession of the property and In Ruhl v. Mott, above, the Supreme Court of his payment of the delinquent installment California said: "It is true that where one after discovering the fraud amounted to is justified in relying, and in fact does rely, an affirmance of the first contract and con- upon false representations, his right of acstituted a bar to a rescission (Ruhl v. Mott, tion is not destroyed because means of knowl120 Cal. 668, 53 Pac. 304; Oppenheimer v. edge were open to him. In such a case no Clunie, 142 Cal. 313, 75 Pac. 899; Greenwood duty in law is devolved upon him to employ v. Fenn, 136 Ill. 146, 26 N. E. 487; Crooks such means of knowledge. But, when therev. Nippolt, 44 Minn. 239, 46 N. W. 349; 2 after he discovers that he has been put upon Pomeroy's Equity Jurisprudence, § 897; 9 and defrauded as to one material matter, noCyc. 436). In Grymes v. Sanders, 93 U. S. tice is at once brought home to him that a 55, 23 L. Ed. 798, the rule is stated as fol- man that has been false in one thing may lows: "Where a party desires to rescind up- have been false to him in all, and it becomes on the ground of mistake or fraud, he must, incumbent upon him to make full investigaupon the discovery of the facts, at once an- tion. A defrauded party has but one elecnounce his purpose and adhere to it. If he tion to rescind, and he must exercise that be silent, and continue to treat the property election with reasonable promptness after as his own, he will be held to have waived discovering the fraud. Delay in the objection, and will be conclusively bound rescission is evidence of a waiver of the by the contract, as if the mistake or fraud fraud, and of an election to treat the contract had not occurred. He is not permitted to as valid. Any acts evincive of an intent to play fast and loose. Delay and vacillation | abide by the contract are evidence of an afare fatal to the right which had theretofore firmance of the contract, and of a waiver of subsisted." So, also, the substitution of the new contract for the old one amounted to a waiver of the fraud which entered into the execution of the old one. Kimball Co. v.

*

the right of rescission." But plaintiff further proceeded in possession of the premises, planted the crops for 1908, made payment of the installment which had been delinquent

since February 20th of that year, entered | Seabury, 23 R. I. 543, 51 Atl. 208), he fails into the new contract of July 1st, harvested to state what, if any, efforts he made, when and marketed the crop of 1908, planted and he discovered that the representations were harvested the crop of 1909, and not until an- false, or whether these representations alone other payment was about to become due did induced him to enter into the contracts. de contend that he had been defrauded into continued in possession of the property for making either contract. three seasons, harvested three crops, and ap

He

absence of allegations showing some excuse for the delay in claiming that he had been defrauded, we think his right, if any he had, should be held to be barred by laches; that he has failed to meet the requirements of the statute above which prescribes the conditions upon which he might have rescinded the contracts. Ruhl v. Mott, above.

Our conclusion is that the complaint is open to the objections raised by the general and special demurrer, and that the trial court's ruling was correct.

[5] Thus far we have treated the allega-propriated them to his own use, and, in the tions of the complaint as charging actionable fraud in the particulars mentioned; but most of the charges are altogether insufficient. In Butte Hardware Co. v. Knox, 28 Mont. 111, 72 Pac. 301, this court said: "Mere expressions of opinion or of judgment do not except in particular cases which must be shown by the pleading constitutes actionable fraud or false representations. Statements made by the owner of property as to the superior kind, quality, or character of his possessions do not of themselves constitute actionable fraud or false representations, though such statements may not accord with the truth." The only false representations which it is alleged Pace and Woods made are: (1) That the proceeds from the sale of the crops would meet the deferred payments as they accrued; (2) that the crops on the premises in August, 1907, were of certain quantity and value; (3) that the soil FLAHERTY v. BUTTE ELECTRIC RY. CO. was rich and productive; and (4) that the yearly average yield from the premises there tofore had been 500 tons of hay of the value of $5.000, 600 sacks of potatoes of the value of $600, 4,000 bushels of oats of the value

of $2,000, and 8 acres of peas of great value for feeding stock. It is perfectly apparent at once that the first and second statements, if made, were nothing but expressions of opinion (1 Page on Contracts, § 98), and the same is generally true of representations of the character of the third one (Butte Hardware Co. v. Knox, above; Tryce v. Dittus, 199 Ill. 189, 65 N. E. 220; 1 Page on Contracts, § 96).

The judgment is affirmed.
Affirmed.

BRANTLY, C. J., and SMITH, J., con

cur.

et al.

(43 Mont. 141)

(Supreme Court of Montana. March 29, 1911.) 1. PLEADING (§ 229*)—AMENDMENT-RIGHT TO

AMEND.

Amendments are allowed with great liberality under the statute, if they do not change the nature of the action or mislead the adverse party to his prejudice.

[Ed. Note. For other cases, see Pleading, Cent. Dig. § 591; Dec. Dig. § 229.*] 2. PLEADING (§ 248*) AMENDMENT

NEW

CAUSE OF ACTION. In an action for damages against a street car company for striking plaintiff's child, the original complaint alleged negligence by the motorman in failing to stop the car before striking the child, and the amended complaint alleged negligence in failing to keep a proper lookout, whereby he could have seen the child and avoided the injury. Held, that the amended complaint did not state a different cause of action from that originally alleged, and was properly allowed.

It fairly appears from the complaint that plaintiff was in Whitehall at or prior to the time the first contract was executed, and the transaction itself brought to his notice such facts as to put him on inquiry as to the qual[Ed. Note.-For other cases, see Pleading, ity of the soil. In fact, so far as the allega- Cent. Dig. §§ 686-709; Dec. Dig. § 248.*] tions of the complaint are concerned, plain-3. MASTER AND SERVANT (§ 301*)-MASTER'S tiff had the same opportunity to examine and determine the character of the soil before

the contract was made as he had afterwards. In the absence of any special circumstances pleaded tending to give a different character to the representations 1, 2, and 3 from that which appears on their face, we may dismiss them as not sufficient to show actionable fraud; and we have left but the statements attributed to Pace and Woods, as to the extent and value of the crops theretofore grown on the premises. Assuming, as we may do, that the plaintiff was entitled to a reasonable opportunity to determine the truth or falsity of those statements (Charbonnel v.

LIABILITY-THEORY OF LIABILITY.

Under the rule respondeat superior, to charge one for another's negligent act, the person charged must be the superior to him doing the negligent act.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1210-1216; Dec. Dig. § 301.*]

4. MASTER AND SERVANT (§ 329*)-INJURIESALLEGATIONS OF COMPLAINT RELATION

SHIP.

In alleging the relationship of master and servant, the complaint need only allege those facts necessary to be proven in order to establish such relationship.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1268, 1269; Dec. Dig. § 329.*]

5. MASTER AND SERVANT (§ 330*)—ACTION— EVIDENCE-RELATIONSHIP.

That a vehicle, street car, etc., by the negligent management of which plaintiff was injured, was in charge of a certain person when he was injured is prima facie evidence that such person was the servant of the owner. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dec. Dig. § 330.*]

6. STREET RAILROADS (§ 110*) LIABILITY TO THIRD PERSON-ALLEGATIONS OF COMPLAINT RELATIONSHIP.

In an action against a street car company for injuries by striking a child on the track, the complaint alleged that at the time and place of the injury a certain person was in charge of one of defendant's cars as conductor, and was driving the car as motorman, and not acting in his usual capacity as conductor, doing so with defendant's knowledge and consent. Held, that the complaint sufficiently alleged that such person was defendant's servant at the time of the injury, so as to make applicable the rule of respondeat superior.

[Ed. Note. For other cases, see Street Railroads, Dec. Dig. § 110.*]

7. STREET RAILROADS (§ 93*)-INJURIES-NEG

LIGENCE.

A motorman must exercise reasonable and ordinary care to discover persons on or near the track in time to avoid injuring them, and is negligent for his failure to do so. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.*] 8. Street Railroads (§ 110*)—NEGLIGENCE

ACTION-ALLEGATIONS-PROXIMATE CAUSE. Allegations of the complaint, in an action against a street car company for injuries to a child on the track, that the motorman was negligent in failing to keep a proper lookout, and "that by reason of the negligence of said defendant" plaintiff was injured, sufficiently alleged the motorman's negligence as the proximate cause of the injury.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 224; Dec. Dig. § 110.*]

9. STREET RAILROADS (§ 117*)-INJURIES-ACTION-JURY QUESTION-UNAVOIDABLE ACCI

DENT.

Where, in an action for injuries by being struck by a street car, the evidence was sharply conflicting as to whether the motorman's vision of the injured person was unavoidably obscured, the question of whether the injury was unavoidable was for the jury.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. § 253; Dec. Dig. § 117.*]

Appeal from District Court, Silver Bow County; J. M. Clements, Judge.

Action by Wilfred H. Flaherty, by Laura S. Flaherty, his guardian ad litem, against the Butte Electric Railway Company and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Reversed and remanded for a new trial, unless a remittitur is filed, in which case judgment is affirmed as modified, and the order denying a new trial is affirmed.

W. M. Bickford, Geo. F. Shelton, Peter Breen, and Chas. A. Ruggles, for appellants. J. E. Healy, M. F. Canning, and Canning & Keating, for respondent.

HOLLOWAY, J. A statement of the facts of this case will be found in the opinion upon the former appeal. Flaherty v. Butte Electric Ry. Co., 40 Mont. 454, 107 Pac. 416, 135 Am. St. Rep. 630. Upon the return of the cause to the district court, plaintiff amended his complaint, and the issues being joined a trial was had, which resulted in a verdict and judgment in his favor for $25,000. Defendants have appealed from the judgment and from an order denying them a new trial.

The

[2] The complaint as originally drawn charged negligence in the operation of the car which resulted in the injury, particularly in that Le Sage, the motorman at the time, failed to turn off the electric current, apply the brakes, and stop the car before striking the child. Upon the former appeal we held that the evidence failed to prove the specific act of negligence thus pleaded. amendment made to the complaint consists in substituting for the allegation of the specific act of negligence in failing to apply the brakes, etc., an allegation that Le Sage failed to keep any vigilant or proper lookout, whereby he might have seen the child and avoided the injury. It is now insisted that the socalled amendment was in fact the substitution of a different cause of action.

[1] There cannot be any question as to the general rule of law applicable in such cases. In Leggat v. Palmer, 39 Mont. 302, 102 Pac. 327, this court said: "Under the statute, to allow amendments is the rule; to deny them is the exception. The rule observed by this court has always been to allow them with great liberality, where they do not change the nature of the action, or mislead the adversary to his prejudice; its application going even to the extent of permitting them after verdict and judgment." The only difficulty arises in applying the rule to the facts of the particular case. "To constitute a cause of action for a tort, then, the plaintiff's right must have been infringed by the wrongful act of the defendant, with the result that plaintiff suffered damages." Dillon v. Great Northern Ry. Co., 38 Mont. 485, 100 Pac. 960. It is alleged in the original and also in the amended complaints that the negli gence of the defendants in operating the car caused the injury. May the plaintiff, then, substitute as the charging part of his complaint one specific act of negligence for another, without introducing a different cause of action?

In Kerr v. Grand Forks, 15 N. D. 294, 107 N. W. 197, the original complaint charged that the injury resulted from negligence of the city in permitting a sidewalk to be constructed in a dangerous manner. The amendment charged that the negligence consisted in permitting the sidewalk to remain in a dangerous condition after the city had notice.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

It was held that this amendment was prop-in permitting certain boards in a sidewalk erly allowed.

to become loose, whereby plaintiff tripped In Peery v. Quincy, O. & K. C. R. Co., and fell. The amendment charged negli122 Mo. App. 177, 99 S. W. 14, the original gence in permitting the sidewalk to remain complaint charged that the negligence con- in an unsafe condition, by reason whereof sisted in failing to keep a fence in repair. plaintiff stepped upon and broke through a The amendment charged negligence in main- | defective board, thereby sustaining the intaining a defective gate. The allowance of this amendment was held proper.