Opinion by
DEVEREUX, C.
(after stating the facts as above). This being a case of equitable cognizance, this court has jurisdiction to examine the evidence and review the findings of fact of the trial judge
(Schock v.
Fish,
45 Okla. 12, 144 Pac. 584;
Wimberly v. Winstock,
46 Okla. 645, 149 Pac. 238), and in the statement of the' case we have set out the facts as shown by a preponderance of the evidence. The court below made voluminous findings of fact, and one especially, that the allegation of mutual mistake was disproved by the evidence, we dis-affirm, as this fact seems to be proved beyond a doubt. The trial court gave too much weight to the numbers of the lots and blocks, and lost. sight of the fact that the parties examined the identical land, and the exchange was made for the specific land examined, without regard to its lot or block description. The argument of the defendants in error is not predicated on the fact that there was no mistake; but they contend that where both parties have equal means of information, and act in good faith, equity will not relieve against a mistake, and to support this proposition they cite numerous cases, among them
Grymes v. Sanders,
93 U. S. 55, 23 L. Ed. 798, which holds:
“Mistake, to be available in equity, must not have arisen from negligence where the means of knowledge were easily accessible. The party complaining must have exercised at least the degree of diligence ‘which may fairly be expected from a reasonable person.’ ”
But the facts in that case are so dissimilar to the case at bar that it cannot be considered as an authority, for the court says:
“The subsequent conduct of the appellees shows that th.e mistake had no effect upon their minds for a considerable period after its discovery, and then it seems to have been rather a pretext than a cause.”
And again:
“When a party desires to rescind upon the ground of fraud or mistake, .he must, upon the discovery of the facts, at once announce his purpose and adhere to it. If he be silent, and continue to treat the property as his own, he will be held to have waived the objection, and will be conclusively bound by the contract, as if the mistake or fraud had not occurred. He is not permitted to play fast and loose.”'
It is plain that the facts in that case are so different from those of the case at bar that the decision has no application.
The case of
Dunham v. Smith,
15 Okla. 283, 81 Pac. 427, is in its facts very similar to the case at bar. In that case the defendant in error, Smith, brought a suit to recover damages from Dunham for having falsely and fraudulently shown her certain lots in block 28, Maywood addition, Oklahoma City, as being lots which they had for sale as agents of one Healy, and they fraudulently, induced her to accept a deed to lots in block 24 of the same addition; she believing that the deeds described the lots which had been shown her. The answer admitted that the wrong lots were shown her, and that the deeds covered other and different lots, but alleged that they acted in good faith in showing the lots in block 28, and that they believed at the time that such, lots were the lots belonging to Healy, which they had for sale. The court say:
“The only proposition argued for a reversal of this case by plaintiffs in error is that a person cannot sue for damages by fraud, and recover by proving a mistake. We do not think this statement is literally true. As to whether a mistake constitutes a fraud or not depends entirely on the surrounding circumstances. If the mistake is one which the party making it, from his knowl
edge of the facts, or from his position and opportunity of ascertaining the facts, could readily have discovered before making it, and he acted without due regard for the rights. of the other party, and without proper caution to ascertain the truth of the statements made by him, and the other party relied upon these statements and was. thereby damaged, we do not think that the law would excuse such a false representation on the ground that it was a mistake. Now the evidence discloses in this case that the palintiffs in error were in the real estate business, and were presumed to know and understand the character of the business they were engaged in. * * * The plaintiff had a right to presume that they knew the exact location of the lots they were selling. The plaintiff not being in the same business, the same presumption would not apply to her as to her knowledge on the subject.”
In the case at bar defendant Speed owned these lots, and the plat in Teams’ office showed the lots and blocks. Admitting that he did not know the land by lots and block when he showed the plaintiffs in error the lots which he intended to exchange for their farm, common fairness required that before executing the deed he should examine the plat and ascertain if the lots ■ they had selected were the lots he deeded. The plaintiffs, as in the Dunham Case,
supra,
knew nothing in regard to this land; they relied entirely on the good faith of Speed to convey to them the land which was specifically selected.
Eev. Laws 1910, sec. 904, provides that “constructive fraud” consists in any 'breach' of duty which, without an actually fraudulent intent,, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice. Granting that Speed did not actually intend to defraud the plaintiffs, yet his conduct comes within this definition. The fact of the
numbers of the lots and block in this case was a matter within his knowledge, or which by the exercise of ordinary diligence he should have ascertained before making the deed. Instead of doing so, he makes a deed for lots worth very much less than those selected, and now refuses in any way to correct the mistake, and insists that he is entitled to keep the land of the plaintiffs in error in, exchange for lots which they never agreed to exchange, and which are of very much less value than the land they owned, and of much less than the lots they examined. The case of
Dunham v. Smith, supra,
is wholly in point and governs this case.
There can be no question in this case that, although the main relief prayed for, the cancellation of the deeds and the restoration of the parties
in statu quo,
has been defeated,, yet the plaintiffs are entitled to recover damages.
In
Cook v. Warner,
41 Okla. 781, 140 Pac. 424, it is held:
“A
court of equity which has obtained jurisdiction of the controversy on any ground or for any purpose will retain such jurisdiction for the purpose Of administering complete relief and doing entire justice with respect to the subject-matter, and to avoid multiplicity of suits.”
In
Woodbury v. Marblehead Water Co.,
145 Mass. 509, 15 N. E. 282, the action was to restrain the water company from maintaining its pipes on plaintiff’s land.
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Opinion by
DEVEREUX, C.
(after stating the facts as above). This being a case of equitable cognizance, this court has jurisdiction to examine the evidence and review the findings of fact of the trial judge
(Schock v.
Fish,
45 Okla. 12, 144 Pac. 584;
Wimberly v. Winstock,
46 Okla. 645, 149 Pac. 238), and in the statement of the' case we have set out the facts as shown by a preponderance of the evidence. The court below made voluminous findings of fact, and one especially, that the allegation of mutual mistake was disproved by the evidence, we dis-affirm, as this fact seems to be proved beyond a doubt. The trial court gave too much weight to the numbers of the lots and blocks, and lost. sight of the fact that the parties examined the identical land, and the exchange was made for the specific land examined, without regard to its lot or block description. The argument of the defendants in error is not predicated on the fact that there was no mistake; but they contend that where both parties have equal means of information, and act in good faith, equity will not relieve against a mistake, and to support this proposition they cite numerous cases, among them
Grymes v. Sanders,
93 U. S. 55, 23 L. Ed. 798, which holds:
“Mistake, to be available in equity, must not have arisen from negligence where the means of knowledge were easily accessible. The party complaining must have exercised at least the degree of diligence ‘which may fairly be expected from a reasonable person.’ ”
But the facts in that case are so dissimilar to the case at bar that it cannot be considered as an authority, for the court says:
“The subsequent conduct of the appellees shows that th.e mistake had no effect upon their minds for a considerable period after its discovery, and then it seems to have been rather a pretext than a cause.”
And again:
“When a party desires to rescind upon the ground of fraud or mistake, .he must, upon the discovery of the facts, at once announce his purpose and adhere to it. If he be silent, and continue to treat the property as his own, he will be held to have waived the objection, and will be conclusively bound by the contract, as if the mistake or fraud had not occurred. He is not permitted to play fast and loose.”'
It is plain that the facts in that case are so different from those of the case at bar that the decision has no application.
The case of
Dunham v. Smith,
15 Okla. 283, 81 Pac. 427, is in its facts very similar to the case at bar. In that case the defendant in error, Smith, brought a suit to recover damages from Dunham for having falsely and fraudulently shown her certain lots in block 28, Maywood addition, Oklahoma City, as being lots which they had for sale as agents of one Healy, and they fraudulently, induced her to accept a deed to lots in block 24 of the same addition; she believing that the deeds described the lots which had been shown her. The answer admitted that the wrong lots were shown her, and that the deeds covered other and different lots, but alleged that they acted in good faith in showing the lots in block 28, and that they believed at the time that such, lots were the lots belonging to Healy, which they had for sale. The court say:
“The only proposition argued for a reversal of this case by plaintiffs in error is that a person cannot sue for damages by fraud, and recover by proving a mistake. We do not think this statement is literally true. As to whether a mistake constitutes a fraud or not depends entirely on the surrounding circumstances. If the mistake is one which the party making it, from his knowl
edge of the facts, or from his position and opportunity of ascertaining the facts, could readily have discovered before making it, and he acted without due regard for the rights. of the other party, and without proper caution to ascertain the truth of the statements made by him, and the other party relied upon these statements and was. thereby damaged, we do not think that the law would excuse such a false representation on the ground that it was a mistake. Now the evidence discloses in this case that the palintiffs in error were in the real estate business, and were presumed to know and understand the character of the business they were engaged in. * * * The plaintiff had a right to presume that they knew the exact location of the lots they were selling. The plaintiff not being in the same business, the same presumption would not apply to her as to her knowledge on the subject.”
In the case at bar defendant Speed owned these lots, and the plat in Teams’ office showed the lots and blocks. Admitting that he did not know the land by lots and block when he showed the plaintiffs in error the lots which he intended to exchange for their farm, common fairness required that before executing the deed he should examine the plat and ascertain if the lots ■ they had selected were the lots he deeded. The plaintiffs, as in the Dunham Case,
supra,
knew nothing in regard to this land; they relied entirely on the good faith of Speed to convey to them the land which was specifically selected.
Eev. Laws 1910, sec. 904, provides that “constructive fraud” consists in any 'breach' of duty which, without an actually fraudulent intent,, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice. Granting that Speed did not actually intend to defraud the plaintiffs, yet his conduct comes within this definition. The fact of the
numbers of the lots and block in this case was a matter within his knowledge, or which by the exercise of ordinary diligence he should have ascertained before making the deed. Instead of doing so, he makes a deed for lots worth very much less than those selected, and now refuses in any way to correct the mistake, and insists that he is entitled to keep the land of the plaintiffs in error in, exchange for lots which they never agreed to exchange, and which are of very much less value than the land they owned, and of much less than the lots they examined. The case of
Dunham v. Smith, supra,
is wholly in point and governs this case.
There can be no question in this case that, although the main relief prayed for, the cancellation of the deeds and the restoration of the parties
in statu quo,
has been defeated,, yet the plaintiffs are entitled to recover damages.
In
Cook v. Warner,
41 Okla. 781, 140 Pac. 424, it is held:
“A
court of equity which has obtained jurisdiction of the controversy on any ground or for any purpose will retain such jurisdiction for the purpose Of administering complete relief and doing entire justice with respect to the subject-matter, and to avoid multiplicity of suits.”
In
Woodbury v. Marblehead Water Co.,
145 Mass. 509, 15 N. E. 282, the action was to restrain the water company from maintaining its pipes on plaintiff’s land. It appeared that the original description of the land was not sufficiently accurate for identification, and after the bill was filed the company made a new taking and filed a full arid complete description of the land, with the exception of the names of the owners. Mr. Justice Holmes,
speaking for the court, held that the injunction could not be granted, but that the bill might he retained for the assessment of damages with reference to the injury before the lawful taking. And see, deciding the same question, Sa
lton Sea Cases,
172 Fed. 792, 97 C. C. A. 214.
In
Camp v. Boyd,
229 U. S. 530, 33 Sup. Ct. 785, 57 L. Ed. 1317, it is held:
“A court of equity ought to do justice completely, and not by halves. As a court of equity should prevent multiplicity of suits, it may, to this end, if obliged to take cognizance of a suit for any purpose, retain it for all purposes, even though this requires it to determine purely legal rights that are otherwise beyond its authority.”
The record leaves it in doubt whether leave was ever granted to file an amendment to the amended petition so as to make the allegations thereof conform to the proof. At one part of the record it appears “thereafter, to wit, on the 7th day of February, 1913, the plaintiffs by leave of court granted to amend the petition to conform to the .facts, filed their amendment to the petition,” and the amendment follows this recital. However, after final judgment, an application was filed asking permission to file such an amendment,. which was refused. It is probable that the last order was made on the erroneous finding of fact that no mistake had been made. However this may be, under the facts of this case, leave should have been granted the plaintiffs to amend their petition so as to conform to the evidence. Rev. Laws 1910, sec. 4790;
Ball v. Rankin,
23 Okla. 801, 101 Pac. 1105;
Z. J. Fort Produce Co. v. Southwestern Grain & Produce Co.,
26 Okla. 13, 108 Pac. 386; and
Robinson v. Stiner,
26 Okla. 272, 109 Pac. 238.
We therefore recommend that the judgment be reversed, and the cause remanded for a new trial.
By the Court: It is so ordered.