Putney v. Schmidt

Citations

• 16 N.M. 400
• 120 P. 720

Syllabus

<p>SYLLABUS.</p> <p>1. Where there appears to he sufficient evidence to support the finding of facts in the lower court, it will not be disturbed.</p> <p>2. Appellant’s representative having undertaken to give the proposed sureties information in regard to Broyles’ financial condition, he should have disclosed all the facts and circumstances, affecting the risk, within his knowledge.</p> <p>3. Where a party received something of value under a contract, if he seeks to rescind the same upon the ground of fraud, he must immediately, upon, discovering the fraud, restore, or offer to restore, all that he has received under the contract, as a condition precedent to his right to rescind the same.</p> <p>4. Where a party received nothing under the contract, acted merely as trustee for another, the contract, remaining wholly executory as to the party claiming fraud, there was nothing which he could return and he had a right to await suit upon the contract and then set up fraud as a defense.</p> <p>5. Where an affirmance is relied upon, it should appear that the party having a right to complain of the fraud had freely and with full knowledge of his rights, in some form, clearly manifested his intention to abide by the contract and waive any remedy he might have for the deception.</p> <p>6. A new trial will not he granted merely on the ground that the judge received improper testimony on the trial of the issue, or that he rejected that which was proper, if on the whole facts and circumstances the court is satisfied that justice has been done or that the result ought not to have been different, if such testimony had been rejected in the one case or received in the other.</p> <p>7. The proper practice requires the submission only of such issues to the jury as would determine the ultimate or constitutive facts.</p>