stating that "the law favors the right of men of full age and competent understanding to contract freely"
How later courts described this case
- stating that "the law favors the right of men of full age and competent understanding to contract freely"
- "It is well settled ... that a person claiming the right to rescind a contract because of misrepresentations or fraud, must, after discovery of the fraud, ... evidence his intent to rescind by some unequivocal act either by notice or some act amounting to notice of intent to rescind. Moreover, a defrauded party, after learning the truth will not be permitted to go on deriving benefits from the transaction and later elect to resceind."
- “For almost a year plaintiff [vacillated] between reliance on the contract, obtaining a modified contract, abandonment of the contract and finally rescission.”
- "A contract is unenforceable as violating public policy ... only if it violates a well-defined and dominant policy that may be ascertained from the law and legal precedent."
Written by the judges who cited it.
The opinion
WOLFE, Justice.
I concur.
Assuming for the case that McGarry’s representations were actionable misrepresentations, which I doubt, I think that some or perhaps most of Frailey’s efforts set out in the opinion were legitimate and reasonable efforts to get himself out of a bad situation into which McGarry’s representations had induced him to enter. They would take time to work out. In such a case as this what is a reasonable time to decide and announce the intent to rescind may be considerably longer than in the case where the contract presents a simple matter for extrication. And even Frail-ey’s inquiries into the possibilities of obtaining a change in the point of diversion and point of use of the water applied for with an intent to desert the contract may be in line with an exploration into means of retiring with as little loss as possible from a bad situation brought about by the supposed misrepresentation of McGarry. But the total time taken from March 2, 1946 (when Frailey was informed that there was insufficient water in the basin
*520
to supply all prior applications), until January 15, 1947, in electing to rescind the contract is longer than a reasonable time to elect to rescind, in view of the fact that he knew in March, 1946, that there was insufficient water and in June, 1946, that he could not transfer the water he had applied for because he would then not be in position to restore McGarry’s rights. As I understand the prevailing opinion, it is not in any way contrary to this view that considerable time might be accorded to exercise an election to rescind in cases such as this where the grounds of rescission may not be so clear and where the election may depend upon reducing to a reasonable certainty some of the contingencies which may be in the path of rescission. I understand the opinion desires to lay before the reader the panorama of events stretching between the making of the contract in December of 1945, and the actual announced election to rescind which occurred on January 15, 1947, in order to present the entire picture of hesitation and vacillation rather than to bear down on any or all of the various events in the panorama as indicative of showing that the “point of no return” had been passed, and that the over-all picture reveals a stretch of time beyond what the law would consider reasonable in this case to unequivocally elect to rescind and to notify McGarry of such election.
As to the question of McGarry’s speculation in water rights or his efforts to obtain a monopoly in water as meant by the statute, I concede that the record does not disclose such as far as this case is concerned. I think the place to head off speculation in water or a tendency to gain a monopoly in a water source must be in the Engineer’s office.
I am not sure that I can fully concur in the test that if in this case it could not be said that Frailey was speculating in water, it could not be said that McGarry was doing so. They may stand on different levels insofar as their opportunity or potentialities for speculation or monopoly are concerned. But I am not prepared to say that in this case there is evidence that McGarry’s enterprise involved or was directed to speculation or the obtaining of a monopoly.