Aitken v. Bjerkvig

• Decision Date: 20 July 1915
• Citation: 77 Or. 397,150 P. 278
• Parties: AITKEN ET AL. v. BJERKVIG ET AL. [d]
• Court: Oregon Supreme Court

150 P. 278

77 Or. 397

AITKEN ET AL. v. BJERKVIG ET AL. ^[d]

Supreme Court of Oregon

July 20, 1915

Department 1.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by J. T. Aitken and another against John Bjerkvig and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

The plaintiffs bring this action to recover damages for an alleged fraud said to have been practiced upon them by the defendants in exchange of residence property in Portland Or., for acreage owned by the defendants in Lincoln county Or. After describing the Portland realty and alleging that the defendant John Bjerkvig was acting for himself and the other defendant, the complaint avers, in substance, that the defendants represented the Lincoln county land to consist of 60 acres of open timber and 30 acres of cleared land, which had theretofore been under cultivation, and that the tract had on it a stream of water valuable for water power purposes, the stream being wholly within the premises; that the plaintiffs were ignorant of farming land and agricultural processes and strangers to the real estate and the locality where it was situated. The primary pleading then contains this allegation:

"That upon arriving at what the said defendant John Bjerkvig represented to be the tract in question, he pointed out to the plaintiff a tract of land which he stated was part of the 30 acres above referred to as fit for cultivation. That said tract was covered with a rank growth of ferns and weeds, but otherwise appeared to be clear. That the said defendant so pointed the same out to the plaintiff from near the vehicle which had conveyed the parties to the land. Thereupon the plaintiff proposed to walk into the ferns and weeds and examine the land more closely, but the defendant John Bjerkvig told him it was not necessary for him to do so saying that the land was all clear and ready for the plow that plaintiff could take his word for that; that all of the 30 acres was like what the parties saw near where they were standing on the edge of the tract; and that in that locality land which had not been cultivated for some years always grew up to ferns and other weeds in the manner in which said tract appeared to be grown up. That the plaintiff, because of his ignorance of all agricultural matters, and because of his confidence in the honesty and good faith of the defendant, was persuaded by the defendant not to examine said tract otherwise than as aforesaid, and returned with the defendant to Portland, Or., and closed the deal; the plaintiffs deeding their dwelling house, as aforesaid, to said Jacob J. Bjerkvig."

The plaintiffs charge that closer inspection made by them after the exchange was finally effected revealed that 23 acres of the 30-acre tract represented by the defendants to be clear and fit for cultivation in fact had never been cultivated or cleared and was covered with dead and down timber, logs, stumps, and roots of trees, all of which were concealed by the ferns and weeds to such an extent as to be wholly invisible from the place where the defendant pointed out the land to the plaintiff. The usual allegations that the defendants knew the true conditions of the tract, and that the plaintiffs were ignorant of the same, and relied upon the representations made by the defendants, appear also in the complaint. After a general demurrer to the pleading had been overruled, defendants filed an answer admitting the exchange of properties, that plaintiffs inspected the Lincoln county land, and that John Bjerkvig acted for Jacob, his son, in making the exchange, but otherwise traversing the complaint and averring new matter not necessary to be here considered. The trial resulted in a judgment for the plaintiffs, from which the defendants appeal.

C. A. Applegren, of Portland (Seton & Strahan, of Portland, on the brief), for appellants. B. G. Skulason, of Portland, for respondents.

BURNETT, J. (after stating the facts as above).

The assignments of error are three in number: (1) The overruling of the demurrer to the complaint; (2) disregarding defendants' objection to the reception of any evidence on the ground that the complaint fails to state facts sufficient to constitute a cause of action; and (3) denying the defendants' motion for a judgment of nonsuit at the close of the evidence for the plaintiffs on the ground that the testimony offered up to that time failed to prove their cause of action. The substance of their testimony is that they and a man named Bender went in company with John Bjerkvig to look at the land. They arrived there in the night, and the next morning went to view the premises. The defendant pointed out a tract that was grown up with tall ferns and weeds and said:

"No one has been living on this for over two years. Farms grow up mighty quick in this country."

The plaintiff J. T. Aitken then proposed to go into the ferns and examine the land, when Bjerkvig assured him there was no use going through the ferns; that the plaintiff could rely upon his word. The ferns were very wet at the time, and, taking defendant's statement as true, the plaintiffs made no further examination of the land thus covered with the ferns. It is also in testimony that subsequent examination showed that only about seven acres of the tract had ever been plowed, and that the remainder pointed out by the defendant as land ready for the plow was covered with logs and stumps concealed by the weeds and ferns, and that it was utterly unfitted for plowing, and could not be made arable, except at great expense. In our judgment, the complaint states facts sufficient to constitute a cause of action.

The question is, then, whether there was any testimony competent to go to the jury on the issues involved. The defendants contend that because the plaintiffs had an opportunity of examining the land, but did not, they have no right to rely upon the representations made by the defendant. It is true, as a general rule, that where parties deal at arm's length, and have equal opportunity to ascertain the truth as to the quality of the property involved, and no reliance is placed upon the representations made by the seller, the buyer must take the consequences of his own neglect.

The rule is thus tersely stated by Mr. Justice Field in Slaughter's Adm'r v. Gerson, 13 Wall. 379, 385 (20 L.Ed. 627):

"Where the means of information are at hand and equally open to both parties, and no concealment is made or attempted, the language of the cases is that the misrepresentation furnishes no ground for a court of equity to refuse to enforce the contract of the parties. The neglect of the purchaser to avail himself, in all such cases, of the means of information, whether attributable to his indolence or credulity, takes from him all just claims for relief."

Van Horn v. O'Connor, 42 Wash. 513, 85 P. 260, was a case involving an exchange of land. Mr. Chief Justice Mount there said:

"This court has frequently held that, where representations are made as a matter of opinion, there is no liability for misrepresentations, where the parties are dealing at arm's length, and the means of knowledge are as open to one party as to the other. * * * But where the representations made are of material

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