Volume 240 — Minnesota Reports

<bold>Contracts — rescission — necessity of returning what has been</bold> <bold>received</bold>. <block_quote> 1. Rescission is an equitable remedy which may be granted for a substantial breach of contract. It is the general rule that a party seeking rescission must, as a condition precedent, return or offer to return that which he has received under the contract in order to restore the parties to the positions which they occupied prior to the transaction. After one party to a contract has performed a substantial part of the same, unless he can be placed in <italic>statu quo</italic> the other party cannot rescind for his default in further performance but is limited to an action for damages for such breach of the contract. This rule, however, is not inflexible and yields whenever under the circumstances restitution is not essential to the complete administration of justice between the parties. It is not necessary to return property which is worthless. <italic>Held:</italic> This is not a case in which it can be said that restitution is not essential to the complete administration of justice between the parties.</block_quote> <bold>Estoppel — equitable estoppel — when arises — object —</bold> <bold>practical effect</bold>. <block_quote> 2. Equitable estoppel arises from the conduct of a party. It includes his spoken or written words, his positive acts, and his silence or negative omission to do anything. Its foundation is justice. Its object is to prevent the inequitable assertion or enforcement of claims or rights which might have existed or have been enforceable by other rules of law unless prevented by the estoppel. Its practical effect is, from motives of equity and fair dealing, to create and vest opposing rights in the party who obtains the benefit of the estoppel. It may arise where a party remains silent when it was his duty to speak or in failing to assert a right and knowingly permitting another to act to his prejudice when the assertion of the right would have avoided the loss. <italic>Held</italic> that the village, by its conduct, is estopped from resorting to the remedy of rescission.</block_quote> <bold>Appeal from order denying motion to reduce judgment</bold>. <block_quote> 3. The reversal of the judgment makes it unnecessary to pass upon the appeal of the surety from the order denying its motion to reduce<page_number>Page 133</page_number> the judgment. The judgment, having been set aside, there is nothing to reduce.</block_quote>

<bold>Appeal and error — review — findings of trial court —</bold> <bold>sufficiency</bold>. <block_quote> 1. Before a judgment can be sustained on appeal, the conclusions upon which it is based must find support in the findings. A conclusion and judgment awarding plaintiff $100 for "alimony and support money," which appears inadequate on the limited record here, cannot be sustained in the absence of specific findings as to the income and financial status of the parties.</block_quote> <bold>Divorce — alimony and support money — failure of trial court</bold> <bold>to divide</bold>. <block_quote> 2. An award for "alimony and support money" cannot be sustained here since it cannot be determined therefrom what portion thereof is alimony for plaintiff and what portion support money for the child of the parties.</block_quote> <bold>Appeal and error — scope of review — adequacy of findings —</bold> <bold>necessity of motion in trial court</bold>. <block_quote> 3. Remedy for failure to make specific findings on litigated issues is by motion in the trial court before or subsequent to judgment, but this principle does not limit this court's authority to determine on appeal from the judgment whether conclusions upon which it is based find support in findings of the trial court. Preliminary motion in trial court for specific findings, or for amended findings, is not prerequisite to the exercise of this authority on such an appeal.</block_quote> <bold>Divorce — payment of attorneys' fees — adequacy of award by</bold> <bold>trial court</bold>. <block_quote> 4. In absence of evidence as to reasonable value of services rendered by attorney for plaintiff and in absence of specific findings as to income and financial status of the parties, it cannot be said here that an award in excess of $200 in the trial court for such services was so inadequate as to constitute an abuse of discretion on the part of the trial court.</block_quote>

<bold>Corporations — dissolution — limitation of activities —</bold> <bold>necessity of filing notice</bold>. <block_quote> 1. The provisions of M.S.A. <cross_reference>300.59</cross_reference>, limiting the activities of a corporation after its termination, are not applicable where there was no evidence that the certificate of dissolution of corporate existence had been filed as required by § <cross_reference>301.56</cross_reference>.</block_quote> <bold>Vendor and purchaser — option agreement — exercise of option</bold> <bold>by tender of price — sufficiency of evidence</bold>. <block_quote> 2. The evidence supported the trial court's conclusion that the tender of the purchase price was sufficiently definite to exercise the option for purchase of the realty involved.</block_quote> <bold>Same — same — obligation to transfer marketable title</bold>. <block_quote> 3. Where an option agreement is silent as to the type of conveyance required, there is an implied obligation on the part of the obligor to transfer marketable title.</block_quote> <bold>Same — same — right to demand warranty deed</bold>. <block_quote> 4. Under the facts and circumstances of the instant case plaintiffs were entitled to demand that the conveyance be made by warranty deed.</block_quote><page_number>Page 474</page_number>

<bold>Appeal and error — appealable order</bold>. <block_quote> 1. Under M.S.A. <cross_reference>605.06</cross_reference>, as construed by this court in Snyder v. Minnetonka W. B. Nav. Co. <cross_reference>151 Minn. 36</cross_reference>, <cross_reference>185 N.W. 959</cross_reference>, an appeal lies from the whole of an order granting judgment notwithstanding the verdict made in response to an alternative motion for such judgment or a new trial. Under Rule 50.02(2) of the Rules of Civil Procedure, an order granting motion for judgment notwithstanding the verdict is appealable when made in response to an alternative motion for such judgment or for a new trial.</block_quote> <bold>Release — validity — law determining</bold>. <block_quote> 2. The validity of a release for injuries covered by the federal employers' liability act is to be determined by federal rather than state law.</block_quote><page_number>Page 548</page_number> <bold>Same — avoidance for mistake — sufficiency of evidence</bold>. <block_quote> 3. Under the federal employers' liability act, the present rule is that a fair preponderance of the evidence is sufficient to avoid a release for mistake or fraud, although previously federal courts adhered to the rule that such evidence must be clear, unequivocal, and convincing.</block_quote> <bold>Same — same — where executed in reliance on statements of</bold> <bold>doctor</bold>. <block_quote> 4. A doctor's expressions of opinion or prophecy as to the time required for recovery, based upon mistake as to the nature and extent of the injuries sustained and later determined to be incorrect because injuries were different and more serious than those upon which prophecy was based, are more than mere forecasts or opinions as to future events. They are assurances as to present material facts; and, if a release is executed in reliance upon them, it may be invalidated by a showing of the falsity of such representations.</block_quote> <bold>Same — same — same — proof that statements were untrue</bold>. <block_quote> 5. Testimony by plaintiff as to the circumstances surrounding accidents; as to injuries sustained thereby; as to subsequent pain, suffering, and medical treatment; and as to inability to continue employment supported by medical testimony that injuries sustained as a proximate result of the accident included injuries to back; narrowing of the intervertebral space between the fifth lumbar vertebra and the sacrum; and lumbosacral strain involving back muscles and ligaments with resultant 40 percent permanent partial disability <italic>held</italic> sufficient to support jury's finding that statements made by defendant's doctor inducing execution of release were material and were untrue and, hence, rendered the release invalid.</block_quote> <bold>Same — same — necessity of tendering back money paid</bold>. <block_quote> 6. Under federal employers' liability act, money paid upon a release executed as the result of representations indicating mistake as to material facts must be returned or tendered back prior to the institution of an action to invalidate release. This rule is subject to the exception that testimony by claimant that he was unaware that instrument executed constituted a release, that he had not read it, or that it was represented to him as other than a release makes issue for jury as to whether retention of consideration constituted ratification of release.</block_quote>