Baird v. Gibberd

• Decision Date: 02 April 1920
• Citation: 189 P. 56,32 Idaho 796
• Court: Idaho Supreme Court
• Parties: W. J. BAIRD, Respondent, v. W. H. GIBBERD and B. F. WARDELL, B. F. OLDEN and A. C. WARDELL, Co-partners as B. F. WARDELL & CO., Appellants

189 P. 56

32 Idaho 796

W. J. BAIRD, Respondent, v. W. H. GIBBERD and B. F. WARDELL, B. F. OLDEN and A. C. WARDELL, Co-partners as B. F. WARDELL & CO., Appellants

Supreme Court of Idaho

April 2, 1920

FRAUD - DAMAGES - ATTORNEY FEES - INSTRUCTIONS-AGENCY-FINDINGS-WHEN NOT NECESSARY-FALSE REPRESENTATIONS-POSITIVE ASSERTIONS - RELIANCE UPON - WITNESSES - CORROBORATION - EXTENT AND EFFECT OF.

1. An instruction that "The jury may disregard entirely the testimony of any witness or witnesses whom they believe have wilfully sworn falsely in respect to any material matter unless such testimony is corroborated by testimony, facts or circumstances in evidence established to your satisfaction," does not inform the jury that such corroboration must be practically proof absolute or otherwise they must disregard the testimony of such witnesses.

2. The issue raised by denying the allegation that appellant "volunteered to show plaintiff around and assist him gratis and as a friend, in finding a bargain in an irrigated farm, and in protecting him against fraud and misrepresentation of every kind and character.... ; that he accepted the offer of the defendant, W. H. Gibberd, and gave to him his entire confidence, which the other defendants well knew....," is sufficient to justify an instruction as to the liability of an agent to his principal.

3. An action for fraud or deceit cannot be predicated upon the mere expression of an opinion when the facts are equally within the knowledge of both parties.

4. Attorney fees are not recoverable in a tort action based upon fraud.

5. Where a cause is tried to a jury without objection, error cannot be predicated on the fact that the action was in part one in equity and not in law, and hence should have been tried to that extent by the court, particularly when it appears from the judg- ment that the court adopted the finding of the jury on the point in question.

6. One has a right to rely upon a statement of a material fact made as a positive assertion under circumstances from which it is fairly inferable that the parties making the statement knew that the former was relying expressly upon their representations. Under such circumstances the one to whom the representations are made is under no obligation to inquire into their truth or falsity.

7. When on such an issue the evidence is conflicting, it is not error for the court to deny a motion for nonsuit based upon the ground that the party defrauded had been given information which if pursued would have disclosed the real facts. The conflicting evidence makes a proper case for the jury, and the defendants' rights are adequately protected by an instruction that "Notice or knowledge such as would affect the bona fide character of a transaction does not mean that the party having notice or knowledge must have actual knowledge or notice, but it is sufficient if it is shown that he had reasonable means of knowledge; that is, that he had notice of such facts as would lead a reasonably prudent man to inquire further, which inquiry, if pursued fairly, would disclose facts which would affect the bona fide character of the transaction."

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Carl A. Davis, Judge.

Action for damages. Judgment for plaintiff. Affirmed as modified.

Judgment affirmed. Costs awarded to appellants.

J. B Eldridge, E. G. Davis and Barber & Davison, for Appellants.

The court erred in instructing the jury that they might disregard entirely the testimony of any witness whom they believed had sworn falsely to any material fact, unless corroborated by testimony, facts or circumstances in evidence established to their satisfaction. The instruction says to the jury that such corroboration must be practically proof absolute, or otherwise they must disregard the testimony of the witness. (Ames v. Thren, 136 Ill.App. 568; Hughes on Instructions, sec. 218, and cases cited; Gard v. Thompson, 21 Idaho 485, 506, 123 P. 497; State v. Musgrave, 43 W.Va. 672, 28 S.E. 813; Brown v. Hannibal & St. J. Ry. Co., 66 Mo. 588, 600; Wastl v. Montana Union R. Co., 17 Mont. 213, 42 P. 772; Minich v. People, 8 Colo. 440, 452, 9 P. 4.)

The court erred in instruction No. 6, as to the liability of an agent to his principal. There was neither plea nor proof to support any theory of agency. (Hughes on Instructions, secs. 81, 93, 93a, 94, and cases cited; Johnson v. Fraser, 2 Idaho 404, 18 P. 48; Gwin v. Gwin, 5 Idaho 271, 48 P. 295; Idaho Implement Co. v. Lambach, 16 Idaho 497, 101 P. 951; Gard v. Thompson, supra.)

This instruction had a tendency to mislead the jury by intimating that the judge believed there was such agency, and is reversible error. (Pennsylvania Canal Co. v. Harris, 101 Pa. 80, 93; State v. Cain, 20 W.Va. 679; Chicago, B. & Q. Ry. Co. v. Anderson, 38 Neb. 112, 56 N.W. 794; Galveston Land etc. Co. v. Levy, 10 Tex. Civ. App. 104, 30 S.W. 504; White v. Thomas, 12 Ohio St. 312, 80 Am. Dec. 347; Perot v. Cooper, 17 Colo. 80, 31 Am. St. 258, 28 P. 391.)

The court erred in submitting plaintiff's second cause of action to the jury. (Elder v. Idaho etc. Ry. Co., 26 Idaho 209, 213, 141 P. 982.) The court particularly erred in its ambiguity as to the measure of damages.

This instruction violates the rule which requires certainty, and is ground for reversal. (20 Cyc. 17, par. V, note 51, and cases cited; Blashfield on Instructions, sec. 67, and cases cited; 38 Cyc. 1602, par. "e," and cases cited.)

The second cause of action failed to state a cause of action which would, in any event, support a judgment, and the rendering of a judgment upon it is ground for reversal. (Trueman v. St. Maries, etc., 21 Idaho 632, 123 P. 508.)

The court erred in submitting to the jury proof as to counsel fees unless the same were not plead. Attorneys' fees may in some cases be recovered as damages, but not unless plead specially. This doctrine applies to all classes of special damages. (Sears v. Nahant, 215 Mass. 234, Ann. Cas. 1914C, 1296, 102 N.E. 491; Tucker v. Palmberg, 28 Idaho 693, 155 P. 981; Sommerville v. Idaho Irr. Co., 21 Idaho 546, 123 P. 302; Lee v. Boise Dev. Co., 21 Idaho 461, 122 P. 851.)

The court should have sustained defendants' motion for nonsuit as to the first cause of action made at the conclusion of plaintiff's case, and renewed at the close of the taking of testimony, for the special reason that there is no conflict in the evidence. It was the court's duty to instruct the fact as proven. (Neil v. Idaho, etc. R. R., 22 Idaho 74, 125 P. 331; Lawrence v. Leathers, 31 Ind.App. 414, 68 N.E. 179.)

"Whatever puts a party on inquiry is sufficient notice when the means of knowledge are at hand, and if a party omits to inquire, he is then chargeable with all the facts which by a proper inquiry he might have ascertained." (Thomas v. City of Flint, 123 Mich. 10, 81 N.W. 936, 47 L. R. A. 499; Osborne v. Alabama Steel etc. Co., 135 Ala. 571, 33 So. 687.)

Karl Paine and A. C. Hindman, for Respondent.

The instruction relating to the 1913 hay crop is phrased in the language of the books. (23 Century Digest, title "Fraud," secs. 61, 62.)

In the sale of farming property, false statements of fact as to the productiveness of the land, such as the amount of hay which it produces, the amount of pasturage it furnishes, the number of horses and cattle it maintains, etc., are actionable. (20 Cyc. 59; Epp v. Hinton, 91 Kan. 513, 138 P. 576, L. R. A. 1915A, 675.)

BUDGE, J. Morgan, C. J., RICE, J., concurring.

OPINION

BUDGE, J.

In October, 1913, the respondent entered into a contract to purchase a tract of land in Owyhee county from one Doyle at $ 120 per acre, the total purchase price being $ 14,400. The deal was consummated by and through appellants. This action was commenced by respondent April 15, 1914. The second amended complaint, on which the action was tried, set forth two causes of action based upon alleged fraudulent representations of appellants. The first cause of action was to recover $ 20 per acre, or so much thereof as had then been paid, and to enjoin the collection of the balance unpaid over and above $ 100 per acre, upon the theory that it had been fraudulently represented to respondent that $ 120 per acre was the lowest price at which the land could be purchased from Doyle, whereas, in truth and in fact, the land was actually purchased from him at $ 100 per acre.

The second cause of action was to recover damages alleged to have been suffered by reason of the fact, as alleged, that respondents had fraudulently represented that the land had grown a crop of hay for the season of 1913 amounting to 600 tons, when, as a matter of fact, the crop only amounted to about 400 tons.

Appellants' answer put in issue the questions of fraud referred to and a cross-complaint was filed to recover certain alleged damages. A stipulation was entered into that the allegations of the cross-complaint might be deemed denied.

The case was tried to a jury which returned a verdict on both causes of action in favor of respondent, for a total amount of $ 4,401, which was therein itemized as follows: "On plaintiff's first cause of action $ 2,400. . . . On account of the damages because of the fact that the land did not produce 600 tons of hay in 1913, $ 1,500. On account of expenses incurred by the plaintiff, $ 500. On account of exemplary damages, $ 1. . . . "

By consent of respondent, the first item was reduced from $ 2,400 to $ 1,250, for the reason that only $ 1,250 had been paid on this item. The $ 500 item was reduced to $ 250, for the reason that the respondent's proof would support no more than the latter amount.

Upon this verdict the court entered judgment in favor of respondent, and in addition enjoined the...