
    [No. 16215.
    Department Two.
    April 22, 1921.]
    C. A. Barber et al., Appellants, v. S. W. Thompson et al., Respondents.
      
    
    Contbacts (120)—Rescission-—Estopbel. In an action to rescind a contract for the lease of a dairy farm and the purchase of shares of stock in the dairy business, on the ground of false representations as to the condition of the herd and the earnings of the dairy, the finding of the trial court in favor of defendants will not be set aside where the evidence is conflicting, and it further appears that plaintiffs visited the farm and had every opportunity to inspect the herd, and to examine the books that were kept there by the representative of the defendants in possession at the time.
    Appeal from a judgment of the superior court for Clarke county, Back, J., entered April 12, 1920, dismissing an action to rescind a contract, tried to the court.
    Affirmed.
    
      McMaster, Hall & Schaefer, for appellants.
    
      R. C. Sugg, for respondents.
    
      
      Reported in 197 Pac. 613.
    
   Main, J.

The purpose of this action was to rescind a contract of sale of stock in a corporation and a lease of a farm and dairy business. The cause was tried to the court without a jury and resulted in a judgment dismissing the action. From this judgment the plaintiffs appeal. The respondents are husband and wife, and reside at Vancouver, Washington. The appellants are husband and wife, and at the time of the transaction in controversy, resided at, or near, Enterprise, Oregon. Pickney Brothers Dairy Company is a corporation organized under the laws of the state of Oregon, with a capital stock of ten thousand dollars, divided into one hundred shares of the par value of one hundred dollars per share. This corporation was the owner of a dairy farm near Salem, Oregon. Practically all of the stock of the corporation was owned by the respondents. On September 22, 1918, the respondent, S. W. Thompson, caused to be inserted in the Portland Sunday Journal an advertisement offering the farm and dairy business for sale, exchange or lease. The appellants, having seen this ad, called at the office of Thompson, in Vancouver, to make inquiry with reference thereto. The result of this interview was that one Kenneth Blair, an employee and the agent of Thompson, went with the appellants to visit the farm and look over the proposition. On September 26, 1918, a contract was made between the appellants and the respondents by the terms of which the appellants purchased three shares of the capital stock of the Pickney Brothers Company at five hundred dollars per share, and took a lease upon the dairy farm and business for a period of three years. On October 1, following, the appellants entered into possession of the farm, and a few days later notified Thompson by telephone to come to Salem, which he did, and he was there informed that the appellants were going to quit the place. The appellants remained upon the farm until the 16th of October when they sent Thompson a telegram to the effect that the contract and lease were rescinded, and that they were that day leaving. Subsequently this action was brought to rescind the contract for the purchase of the stock and the lease of the farm, and resulted as above indicated.

The appellants claim fraud in two respects. First, that there was a misrepresentation as to the number of cows that would freshen in tbe following November, and, second, that there had been a representation that the farm was paying net from three hundred to five hundred dollars a month, when in fact it was, and had been, a losing venture. The appellants’ principal reliance is placed upon the latter charge. Upon this question the evidence is directly in conflict; Thompson and Blair testifying one way and the appellants testifying another. If the testimony of Thompson and Blair is to be believed, the appellants knew at the time they made the contract and lease that the place had not been paying but that they believed they could so manage it that they could make it a profitable business. If the testimony of the appellants is to be believed, there was a misrepresentation as to the profits which the farm was producing. The trial court, after listening to this evidence, apparently was of the view that the appellants had not sustained their charge.

After giving careful consideration to the record, we are inclined to the view that the holding of the trial court should be sustained.

There is another feature of the case which lends support to this view. The appellant O. A. Barber was a man who had had experience as a merchant, a farmer, and even at one time engaged in the dairy business. "When they visited the farm, the appellants were given every opportunity to look over the herd and examine the books that were kept by the tenant or manager of the corporation, who was then in possession.

There is no question presented in the case except one of fact. It would serve no useful purpose to review in detail the conflicting testimony.

The judgment will be affirmed.

Parker, G. J., Mitchell, Tolman, and Mount, JJ., concur.  