BrowN, District Judge.
This case comes to this court on direct appeal. Tbe parties therefore will remain as in tbe lower court.
Tbe defendant Percy Meek is a son of Otto Meek. Tbe defendant Western Investment Company is a Utah corporation, organized by defendant Otto Meek, May 29, 1919.
This is an action to set aside tbe contract of sale of tbe ranch, and tbe live stock thereon, consisting of horses, cattle, and tbe farm machinery used in connection therewith belonging to plaintiff, on tbe ground and for tbe reason that it was induced by tbe fraudulent representa
tions of tbe defendant, Otto Meek. Tbe defendant, Otto Meek, met plaintiff in tbe public highway at Fort Bridger and approached him with a proposition to buy bis ranch, live stock, and farm machinery. There seems to have been no difficulty in arriving at the price. The defendant readily agreeing to pay the price asked, $13,000.00, in ease the plaintiff would accept as part of the purchase price a note of Goodwall for $2000.00, three notes of East for $1000.00 each, a note of Bennett for $5000.00, and a note of Condra for $1200.00, the balance of $1800.00 to be paid in cash. Defendant represented at the time that all of these notes were good notes, that the makers thereof were financially responsible, that the notes would be paid when due and that he would guarantee their payment, and assist in their collection. The parties met again the next day at Stock-growers Bank in Evanston and closed the bargain. A deed to the ranch property was made to defendant Western Investment Company, which company Otto Meek was then organizing. During the time the notes were being transferred to plaintiff, he stepped out of the room for a few minutes, and upon his return he noticed that on one of the notes the words, “without recourse” were written over Otto Meek’s signature, but he was unacquainted with commercial matters and did not know that those words so used excused defendant from liability. The restricted endorsement had been placed upon all of the notes except the East notes. Defendant, Otto Meek, asked to take the East notes to have an error in them corrected, but instead of returning the original notes, corrected as he had stated, he had new notes made running direct to plaintiff, not endorsed, extending the payment for one year on each note. Otto Meek received the deed to the ranch, delivered it to the County Clerk for record and received it again after it had been recorded. Shortly thereafter the property covered by this deed was transferred by the Western Investment Company in consideration of One Dollar to
defendant Percy Meek. The Goodwall note of $2000.00 was collected after this suit was brought. None of the other notes was collected or could be collected. The other makers of the notes had all been in the employ of Otto Meek on a salary. None had any property and the reputation of each for solvency was bad.
At the close of plaintiff’s case defendant rested without offering any evidence in support of his case. The court found that the contract was induced by the fraudulent representations of defendant, Otto Meek, that plaintiff had been damaged more than the $3800.00 he had received, and rendered judgment in plaintiff’s favor.
The defendant brings the ease to this court on direct appeal.
The trial in the lower court was commenced on the 22nd day of April, 1920. At the close of plaintiff’s case, and during the arguments on defendants’ motion for non-suit and dismissal of the ease, plaintiff asked to be permitted to file an amended petition. This was granted by the-court. The time for filing same was fixed by the court at forty five days; the same period thereafter was allowed for answer or other pleading by defendants, and fifteen days thereafter for a reply, and said order recited that plaintiff had asked that the case be continued for a reasonable time.
The defendants urge the overruling of their demurrer to the amended petition as error. Just wherein the amended petition fails to state a cause of action is not pointed out in defendants brief. "We have carefully examined the amended petition and think it cannot be attacked on general demurrer. After adjourning the ease in April, 1920, to permit plaintiff to file an amended petition, and defendants to join issue thereon, the cause drifted to May 10, 1923. At this time, on taking up the case, the court held, to which an exception was taken by defendants, that the hearing at this time was a continuation of the trial started
April 22, 1920, and that it would consider at this time tbe evidence taken at such former hearing. This action of the trial court is relied upon by defendants for a reversal of the case.
In so holding, the court stated as its understanding at the time the former trial was continued or adjourned that the evidence that had been admitted would be considered applicable “in the continuance of the case,” to which one of counsel for defendants replied that while he realized there was no use of going over the testimony two or three times and he had no desire to do so, some of the evidence previously taken might not be applicable or might be objectionable because of the amended petition. Whereupon, plaintiff’s counsel stated in effect that there had been no substantial change in the pleading, but that the action was and had remained one to set aside a void deed, the evidence having been to the effect that plaintiff had received no consideration. The court then stated that “the court considers that this case was continued, and the parties allowed to amend their pleadings, and that this is a continuation of the original hearing,” and that “the evidence heretofore adduced in so far as the same is applicable to the present amended pleadings will be considered by the court.” Thereupon, counsel for defendants expressed a desire to except, whereupon the court continued, “I believe that was the understanding at the time we continued the ease, and it is so ruled, and the exception is allowed.” We think this colloquy, shown in the record, may be taken as showing an understanding of the court and parties at the time the trial in 1920 was adjourned, that the evidence already in should be considered upon the further trial of the case, except that counsel for defendants desired to be in a position where they might object to such parts of the former testimony as they deemed inapplicable under the new pleading, or that they might be permitted to tender such objections, and that seems to
have been allowed them. It does not clearly appear that there was not such an understanding for the use of the former testimony, and the character of the objection to its use when the trial was resumed indicates, we think, the aforesaid limitation thereof.
It will be necessary to a complete understanding of this question to examine briefly the original and the amended petitions and note the departure, if any, in the amended petition from the allegations in the original petition, in order to determine whether or not the evidence introduced in support of the original petition also supports the allegations of the amended petition. It should be noted here that the answers in each instance were substantially a general denial, with some admissions that need not be noticed here.
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BrowN, District Judge.
This case comes to this court on direct appeal. Tbe parties therefore will remain as in tbe lower court.
Tbe defendant Percy Meek is a son of Otto Meek. Tbe defendant Western Investment Company is a Utah corporation, organized by defendant Otto Meek, May 29, 1919.
This is an action to set aside tbe contract of sale of tbe ranch, and tbe live stock thereon, consisting of horses, cattle, and tbe farm machinery used in connection therewith belonging to plaintiff, on tbe ground and for tbe reason that it was induced by tbe fraudulent representa
tions of tbe defendant, Otto Meek. Tbe defendant, Otto Meek, met plaintiff in tbe public highway at Fort Bridger and approached him with a proposition to buy bis ranch, live stock, and farm machinery. There seems to have been no difficulty in arriving at the price. The defendant readily agreeing to pay the price asked, $13,000.00, in ease the plaintiff would accept as part of the purchase price a note of Goodwall for $2000.00, three notes of East for $1000.00 each, a note of Bennett for $5000.00, and a note of Condra for $1200.00, the balance of $1800.00 to be paid in cash. Defendant represented at the time that all of these notes were good notes, that the makers thereof were financially responsible, that the notes would be paid when due and that he would guarantee their payment, and assist in their collection. The parties met again the next day at Stock-growers Bank in Evanston and closed the bargain. A deed to the ranch property was made to defendant Western Investment Company, which company Otto Meek was then organizing. During the time the notes were being transferred to plaintiff, he stepped out of the room for a few minutes, and upon his return he noticed that on one of the notes the words, “without recourse” were written over Otto Meek’s signature, but he was unacquainted with commercial matters and did not know that those words so used excused defendant from liability. The restricted endorsement had been placed upon all of the notes except the East notes. Defendant, Otto Meek, asked to take the East notes to have an error in them corrected, but instead of returning the original notes, corrected as he had stated, he had new notes made running direct to plaintiff, not endorsed, extending the payment for one year on each note. Otto Meek received the deed to the ranch, delivered it to the County Clerk for record and received it again after it had been recorded. Shortly thereafter the property covered by this deed was transferred by the Western Investment Company in consideration of One Dollar to
defendant Percy Meek. The Goodwall note of $2000.00 was collected after this suit was brought. None of the other notes was collected or could be collected. The other makers of the notes had all been in the employ of Otto Meek on a salary. None had any property and the reputation of each for solvency was bad.
At the close of plaintiff’s case defendant rested without offering any evidence in support of his case. The court found that the contract was induced by the fraudulent representations of defendant, Otto Meek, that plaintiff had been damaged more than the $3800.00 he had received, and rendered judgment in plaintiff’s favor.
The defendant brings the ease to this court on direct appeal.
The trial in the lower court was commenced on the 22nd day of April, 1920. At the close of plaintiff’s case, and during the arguments on defendants’ motion for non-suit and dismissal of the ease, plaintiff asked to be permitted to file an amended petition. This was granted by the-court. The time for filing same was fixed by the court at forty five days; the same period thereafter was allowed for answer or other pleading by defendants, and fifteen days thereafter for a reply, and said order recited that plaintiff had asked that the case be continued for a reasonable time.
The defendants urge the overruling of their demurrer to the amended petition as error. Just wherein the amended petition fails to state a cause of action is not pointed out in defendants brief. "We have carefully examined the amended petition and think it cannot be attacked on general demurrer. After adjourning the ease in April, 1920, to permit plaintiff to file an amended petition, and defendants to join issue thereon, the cause drifted to May 10, 1923. At this time, on taking up the case, the court held, to which an exception was taken by defendants, that the hearing at this time was a continuation of the trial started
April 22, 1920, and that it would consider at this time tbe evidence taken at such former hearing. This action of the trial court is relied upon by defendants for a reversal of the case.
In so holding, the court stated as its understanding at the time the former trial was continued or adjourned that the evidence that had been admitted would be considered applicable “in the continuance of the case,” to which one of counsel for defendants replied that while he realized there was no use of going over the testimony two or three times and he had no desire to do so, some of the evidence previously taken might not be applicable or might be objectionable because of the amended petition. Whereupon, plaintiff’s counsel stated in effect that there had been no substantial change in the pleading, but that the action was and had remained one to set aside a void deed, the evidence having been to the effect that plaintiff had received no consideration. The court then stated that “the court considers that this case was continued, and the parties allowed to amend their pleadings, and that this is a continuation of the original hearing,” and that “the evidence heretofore adduced in so far as the same is applicable to the present amended pleadings will be considered by the court.” Thereupon, counsel for defendants expressed a desire to except, whereupon the court continued, “I believe that was the understanding at the time we continued the ease, and it is so ruled, and the exception is allowed.” We think this colloquy, shown in the record, may be taken as showing an understanding of the court and parties at the time the trial in 1920 was adjourned, that the evidence already in should be considered upon the further trial of the case, except that counsel for defendants desired to be in a position where they might object to such parts of the former testimony as they deemed inapplicable under the new pleading, or that they might be permitted to tender such objections, and that seems to
have been allowed them. It does not clearly appear that there was not such an understanding for the use of the former testimony, and the character of the objection to its use when the trial was resumed indicates, we think, the aforesaid limitation thereof.
It will be necessary to a complete understanding of this question to examine briefly the original and the amended petitions and note the departure, if any, in the amended petition from the allegations in the original petition, in order to determine whether or not the evidence introduced in support of the original petition also supports the allegations of the amended petition. It should be noted here that the answers in each instance were substantially a general denial, with some admissions that need not be noticed here. In the original petition in addition to the usual allegations in a petition to set aside a contract of sale on the ground that it was induced by the fraudulent representations of the defendant, the plaintiff alleged:
“That after the plaintiff had executed and delivered the said warranty deed by him executed as aforesaid and had transferred said personal property to said defendant Otto Meek as aforesaid and upon so doing, said defendant indorsed said promissory notes to the plaintiff and fraudulently indorsed over and upon his name thereon the phrase “without recourse,” that said plaintiff is a rancher and is not learned or skilled in the use of commercial terms and did not know the meaning of said indorsement but did rely upon the statements and representations of said Otto Meek that he would guarantee the payment of all of said notes and did understand and believe that said indorsement was one whereby said defendant guaranteed the payment of said notes and did not learn to the contrary until about September 1st, 1919, when he was informed of the true intent and meaning of said indorsement by his attorney, and the said defendant did so indorse the said notes with the intent to mislead and defraud the plaintiff in that the said defendant then was and now is a sufficient and good security for the sums mentioned in said notes and all thereof and by said indorsement he has intention
ally misled the said plaintiff in believing that his said guarantee of payment of said notes was and is good when by said indorsement he has relieved himself thereof and therefrom and for all liability thereunder. ’ ’
In this paragraph of his petition the plaintiff sets out again more in detail the fraud of the defendant in endorsing the notes without recourse. In other paragraphs he had alleged sufficiently the fraudulent representations with reference to the notes being “good,” the financial standing of the makers, that they would be paid when due, and that defendant would guarantee their payment. The amended petition was substantially the same as the original petition, except that it omitted the quoted paragraph. This paragraph had stated no fact that had not been stated elsewhere in the petition, except, “the defendant then was and now is a sufficient and good security for the sums mentioned in said notes. ’ ’ The deletion of this fact does not change the issues nor the proof necessary to maintain the action.
What is a trial? When does it commence? When does it end? Blackstone says, “Trial, then, is the examination of the matter of fact in issue. ’ ’ Black. Comm. 3300. This was the conception of the word at common law. In modem times trial is usually said to be, “The examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause for the purpose of determining such issue including all of the steps in the case from the submission to the jury or to the court, to the rendition of the judgment.” Bouv. Law. Diet. 3320. Under our statute, “A trial is a judicial examination of the issues, whether of law or of fact, in an action or proceeding. ’ ’ Sec. 5720, Wyo. Comp. Stat. 1920. Just when a trial commences is a difficult question. Without attempting to include all of the technical niceties, a trial may be said to have commenced when all of the preliminary questions have been determined and the jury, or the court in
the absence of a jury, enters upon the examination of the facts for the purpose of determining the controversy. Lipscomb v. State, 76 Miss. 223; 25 So. 158; State v. Johnson, 24 S. D. 590, 124 N. W. 847. We are concerned in this case with the question of when does a trial end, rather than when does it commence, since in this case the plaintiff had introduced all of his evidence and rested when the hearing was interrupted. Ordinarily a trial is not ended until a judgment can be entered, which shall be a final disposition of the controversy on its merits. Hyatt on Trials, Vol. 1, page 44; R. R. Co. v. Muse, 4 A. L. R. 613. There is authority to the effect that a hearing which does not terminate in a judgment is not a trial. State v. Hasle-dike, 52 N. W. 315, 16 L. R. A. 150. That a trial, once commenced, does not end until the completion of the examination or investigation in controversy there can be no doubt. It has been held that the arguments on a demurrer which terminated in a judgment disposing of the ease was a trial. Small v. Ludlow, (N. Y.) 1 Hilt. 307; Pratt v. Lincoln Co., 20 N. W. 726; Ry. Co. v. Reynolds, 20 N. W. 711. And the presentation of a motion for judgment on the pleadings was not a trial, where the motion was denied. Pach v. Gilbert, 9 N. Y. Supp. 546. It would therefore appear that the term “trial” contemplates the final disposition of the controversy, either on the facts or on a question of law. The length of time that elapses from the commencement of the trial to its determination, where such time is not limited by statute, must rest in the sound discretion of the trial court. There was no abuse of such discretion in this case.
At the close of the plaintiff’s ease at the hearing in April, 1920, and again at the conclusion of the plaintiff’s ease in May, 1923, defendant moved for non-suit and dismissal of the case, both of which motions were overruled by the trial court. We have no involuntary non-suit under our practice, for the insufficiency of the evidence. The
territorial Supreme Court in 1882 construed Sec. 5879, Comp. Stat. 1920, to require in such case a decision on the merits. This has been the law in this state since that time. Sales v. Wilson, 31 Wyo.
55;
Bader v. Mills
&
Baker, 28 Wyo.
191;
Mulhern v. U. P. Ry. Co., 2 Wyo. 465; Hoy v. Smith, 2 Wyo. 459.
The Goodwall note was paid after suit was brought and the proceeds therefrom paid to plaintiff. The defendant urges that the plaintiff by accepting the money on this note, knowing all of the circumstances thereby affirmed the contract and should not be permitted to rescind it. He quotes the following from Black on Rescission and Cancellation of Contracts, Yol. 2, Par. 585: “Affirmance of a voidable contract or a waiver of the right to rescind it, will be presumed against the party who, having full knowledge of the circumstances which would warrant him in rescinding it, nevertheless accepts and retains benefits accruing to him under the contract. ’ ’ That this is the general rule of law there can be no doubt. This rule, however, we think should not apply under the facts in this ease. The property of plaintiff was sold to defendant for $13,000.00, $1800.00 of which was paid in cash, the balance of $11,200.00 in notes. The plaintiff had received in money the original cash payment and the proceeds of the Good-wall note, $3800.00 in all. In his amended petition he alleged this fact and offered to bring this money into court. Also while on the witness stand he offered to bring this money into court to be disposed of as appeared just and equitable to the court. The balance of the notes, amounting to $9200.00 were worthless. The real property was worth, according to the evidence, about $7000.00. The plaintiff’s damage as found by the court was in excess of the cash he had received. The Goodwall note was made payable at the Commercial National Bank of Ogden, Utah, and left there for collection before suit was brought. This bank collected it after suit was brought and transmitted
tbe proceeds to plaintiff. We think plaintiff was required to receive it and bring it into court as he did to be disposed of by the court in its judgment, and that by so. doing he has not affirmed nor ratified the contract. The court in Tarkington et al. v. Purvis, 128 Ind. 182, 25 N. E. 879, uses the following language:
“Equivocal acts, however, which do not clearly evince' a purpose, with complete knowledge of the fraud, to retain the property as his own will not defeat the right of a person defrauded to rescind. The act must be unequivocal and must show an election to retain the property after discovering the deceit before the right to rescind is gone. In the-present case the right to claim a rescission has been fully perfected by the appellee by tendering back everything that had been received, and by offering to place the fraudulent vendor in
status qua.
That the plaintiff below afterwards receives money- arising from the sale of some of the assets of the firm in no way militates against his right to compel the rescission since it does not appear that the property was sold in the course of the business of the firm, and the money received was fully accounted for without loss to the appellant.”
And, quoting again from the opinion:
“Where subsequent acts are relied upon as a defense in a ease where fraud is clearly established, it is said the acts must stand upon the clearest evidence and must evince a purpose to waive or forgive the fraud and must amount to a clear election not to rescind. If what is done is merely for the purpose of saving the plaintiff from further loss without any purpose to give up whatever right he may have, either at law or in equity to rescind, the right of rescission will not be affected.”
Numerous exceptions were taken to adverse rulings of' the court while taking the testimony in the case. These are now urged as error. But we have carefully examined them all and find no reversible error therein.
The judgment, upon finding generally for the plaintiff and that there remained due to the plaintiff of the purchase price for the real and personal property described in the petition and amended petition the amounts represented by the promissory notes described in said amended petition, for $5000, $1200, and $1000 respectively, ordered and adjudged that the deed executed by the plaintiff as grantor to the defendant, Western Investment Company, as grantee, dated May 22, 1919, and filed for record May 27,1919, and appearing to have been recorded in the office of the county clerk and ex-officio register of deeds in the county of Uinta in Book 88 of Deeds at page 272, be, “and the same hereby is, cancelled and set aside and held for naught;” also that the plaintiff at the date of said deed was “and now is” the owner of the lands described in said deed and the appurtenances. And it was further ordered and adjudged that the plaintiff, within thirty days, deliver to the clerk the said promissory notes, and that thereupon the defendant be allowed ten days within which to pay to the clerk for the use of the plaintiff the principal sum of said notes, and that upon said payment being so made, the plaintiff shall execute, acknowledge and deliver to said clerk a good and sufficient deed conveying said real estate and appurtenances to Otto Meek, and shall thereupon receive the amount of said payment from said clerk. But that if said payment be not made within the time stated and required, then the defendants and each of them and all persons claiming under them or either of them, in possession of said real estate and appurtenances or any part thereof, shall immediately surrender and deliver full and complete possession thereof to the plaintiff; and that if such possession be not so surrendered and delivered within forty-five days from the date of the judgment, then the clerk, upon demand of plaintiff, shall issue and deliver to the sheriff a writ of restitution, where-under the said sheriff shall forthwith place the plaintiff in
full and complete possession of sncb real property and appurtenances, and tbe defendants and each of them ‘ ‘ are hereby enjoined and restrained from thereafter in any manner interfering with or molesting the possession, use or enjoyment of the premises by the plaintiff, his heirs or assigns. ’ ’
It follows, in our view of the ease as above stated in discussing the questions presented for consideration, that the said judgment must be affirmed in all respects, and it will accordingly be so ordered.
Affirmed.
Potter, Justice, and Tidbail, District Judge, concur.