Bonelli v. Burton

• Decision Date: 16 April 1912
• Citation: 123 P. 37,61 Or. 429
• Parties: BONELLI v. BURTON et al.
• Court: Oregon Supreme Court

123 P. 37

61 Or. 429

BONELLI v. BURTON et al.

Supreme Court of Oregon

April 16, 1912

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by Daniele Francisco Bonelli against W.B. Burton and another. From a decree for plaintiff, defendants appeal. Affirmed.

This is a suit by Daniele F. Bonelli against W.B. Burton and J.S Barber to annul a contract for the sale of an interest in land, to cancel a deed therefor, and to obtain a conveyance thereof. The cause being at issue was tried, and findings of fact were made to the effect that, on March 2, 1009 plaintiff was the owner in fee of an undivided one-fifth of lot 19, in subdivision 2, of De Lashmutt & Oatman's Little Homes, containing five acres, lots 2 and 3, in block 8, in the Ainsworth tract, which lots are 156.875 feet in width by 460 feet in length, and also a strip of land of specified dimensions, commencing at a designated point, and all situate in the city of Portland; that plaintiff is a native of Austria, from which country he recently came to look after his interest in these lands that had been obtained by devise from his brother. Angelo Bonelli, deceased; that plaintiff is unable to speak any English, and, in order to converse with any persons in that language, he is compelled to employ an interpreter; that at the time stated Barber was engaged in that city as a real estate agent, and knew the dimensions of the several pieces of land, the sizes of which were unknown to plaintiff; that, in order to defraud plaintiff, Barber gave several hundred dollars to John Camilio, an interpreter, who, in consideration thereof falsely represented to plaintiff that the first-described tract of land contained only three acres, and the second was only 50 by 200 feet; that plaintiff, not knowing the falsity of such representations, but believing them to have been true and relying thereon, was induced to sign a contract on the day stated, whereby he stipulated to sell and convey to Barber all his interest in the premises for $1,140, when his share of the lands was worth not less than $3,000; that pursuant to that contract, plaintiff signed and acknowledged a deed, purporting to convey to Barber such interest, which deed was placed in escrow with a bank, to be delivered upon payment of the stipulated consideration; that on March 22, 1909, Burton secured an assignment of such contract, and on May 21st of that year the defendants paid to the bank the consideration specified, received the deed and caused it to be recorded; that three days thereafter Barber and his wife executed to Burton a deed, purporting to convey plaintiff's interest in the real property; that plaintiff is, and at all times since bringing this suit has been, able, willing, and ready to give defendants the sum of money which they paid for his interest in the land. As conclusions of law, the court found, in substance, that plaintiff's deed was obtained by false and fraudulent representations; that at the time Barber assigned the contract of sale he had no title to the real property; that plaintiff repudiated the transaction within a reasonable time after discovering the fraud, and was entitled to rescind the bargain and have the contract of sale and his deed canceled upon repaying the sum of $1,140, with interest from May 21, 1909; that Burton was not a bona fide purchaser, or entitled to any protection as such under the pleadings and evidence herein; and that he should execute to plaintiff a good and sufficient deed of an undivided one-fifth interest in the several tracts of land, within 10 days, upon receiving the sum specified. A decree was given in accordance with the findings, and the defendants appeal.

J.O. Stearns, of Portland (J.O. Stearns and D.M. Donaugh, both of Portland, on the brief), for appellants.

A.L. Veazie, of Portland (Veazie & Veazie, on the brief), for respondent.

MOORE J. (after stating the facts as above).

It appears from the testimony that in negotiating for the purchase of an interest in the lands Barber spoke English only, and the interpreter made declarations to plaintiff, who could not understand that language, as to the size of the tracts, giving only three-fifths of the area of one and less than one-seventh of another. No other person who spoke both languages having been present at the time the bargain was made, it is impossible to state whether or not Barber's representations were correctly explained to plaintiff. Based on this circumstance, it is insisted by defendant's counsel that the evidence was insufficient to connect Barber with any fraud that may have been practiced upon the plaintiff; and such being the case an error was committed in rendering the decree brought up for review.

There was received in evidence a written memorandum, of which the following is a copy: "I, the undersigned, agree to pay John Cameleo $50.00 for interpreting and agree to make an estimate of the value of the estate of Angelo Bonelli, Giovanni Schraffle & Daniele Bonelli and all remaining heirs, four months from date, and divide profit between John Camilio and J.S. Barber. [ Signed] J.S. Barber, John Camilio."

A witness for plaintiff testified that Barber informed him that when he first saw Camilio the latter proposed a division of the profits, or a commission, in case of a sale of interest in the real property; whereupon the memorandum was executed, and, pursuant to its terms, Camilio had been paid several hundred dollars for services performed in securing interests of other devisees. Barber was in court, but did not take the stand as a witness. "The omission of a party to an action to testify to facts, or to produce evidence in explanation of or to contradict adverse testimony," says a text-writer, "raises a presumption against his claims, except where the evidence is not peculiarly within his power, or is merely cumulative, or is privileged, or incompetent, or its necessity could not have been reasonably anticipated by the party." Lawson, Presumptive Ev. p. 153. Such, also, is the holding of this court. Mooney v. Holcomb, 15 Or. 639, 641, 16 P. 716; Wimer v. Smith, 22 Or. 469, 477, 30 P. 416.

An agent may act for and represent adverse parties to a transaction, and receive compensation for his services from both, provided each party knows of his employment by the other. Jameson v. Coldwell, 23 Or. 144, 31 P. 279. As no testimony was produced tending to show that plaintiff knew Camilio was to be paid a compensation by Barber, the memorandum received in evidence and the testimony offered in explanation thereof tend to prove that plaintiff was deceived by a person whom he regarded as a friend.

Neither plaintiff nor Barber could understand each other, but were obliged to rely upon the interpreter, and, this being so were the representations made by Camilio to plaintiff, as to the dimensions of the land, imputable to Barber, without proof that he knew of the falsity of such statements? The plaintiff testified through an interpreter that, as he and a nephew were going to one of...