Albitz v. Minneapolis & Pacific Railway Co.

Although the allegations of the complaint are not in some particulars so precise and definite as the best style of *478pleading would require, welihink, on the whole, it contains enough to show a cause of action. The allegation that the plaintiffs are Germans, and only slightly acquainted with the English language, and that the contents of their contract, to rescind which, on the ground that its execution by them was procured by fraud, this action is brought, were not fully nor truly made known to them, amounts to nothing, for the reason that it is not stated what particulars were not made known to them, so that we can see whether -they were ignorant of or misunderstood any particular that, could be deemed material. Moreover, it was their business to know its'contents before signing, and there is nothing to show such relations between .them and defendant’s agent as made it his duty to make them comprehend the contract, or that he did anything to divert their attention from the purport of the instrument. The representation that the defendant’s road was to cross plaintiffs’ land on a particular line, before that time surveyed, cannot be made the basis of a charge of fraud, for the contract expressly leaves it with defendant to follow that line or locate another. The representations as to where the defendant “was to” place a culvert across the creek running through plaintiffs’ land, and how the culvert “was to be constructed” with reference to its use by them, and that the road “was to be built” on a line running through the village'of Bockford, and that its depot “was to be located and built” at a designated place, if taken as mere promises or assurances that the defendant would do those things, would be insufficient, for fraud cannot be predicated of a mere promise, though it be afterwards unfulfilled. But if the agent in making those representations intended to create in plaintiffs the belief that it was, as a fact, the then intention of the defendant to do the things mentioned, and the representations might be understood and were understood by plaintiffs as asserting that fact, then a charge of fraud can be based upon the representations. The plaintiffs might very well have so understood them. That is their fair import. Other false representations set forth in the complaint, such, for instance, as to what had been done by other owners along the line, having no direct connection with the grant sought, while perhaps they might not be sufficient, standing alone, to establish fraud such as would call for a rescission of the *479grant, might be proved as part of the res gestee, to show the character of the transaction and the intent to defraud.

The defendant is not in position to deny the authority of its agent to make the representations. It cannot retain the benefits of the transaction, and repudiate the remainder. If it accepted and retained the contract, it must take it with whatever taint attached to its origin .

Order affirmed.