Carty v. McMenamin

• Decision Date: 26 June 1923
• Citation: 216 P. 228,108 Or. 489
• Parties: CARTY v. MCMENAMIN ET AL. [*]
• Court: Oregon Supreme Court

216 P. 228

108 Or. 489

CARTY v. MCMENAMIN ET AL. ^[*]

Supreme Court of Oregon

June 26, 1923

In banc.

Appeal from Circuit Court, Morrow County; D. R. Parker, Judge.

Action for damages by James Carty against F. A. McMenamin and another doing business under the firm name and style of McMenamin & Ward. Judgment for plaintiff and defendants appeal. Affirmed.

This is an action for damages, growing out of a sale of grazing privileges on lands situate in the state of Washington.

James Carty, the plaintiff, engaged in the sheep business, is a resident of Morrow county, Or. The defendants are partners engaged in the sheep business, with headquarters in the state of Washington. Likewise, they list summer range for live stock and lease it to persons desiring the same. One of the defendants also maintains an office at Heppner, Or., where the contract hereinafter referred to was made.

In the early spring of 1920, the plaintiff leased from the defendants a tract of land consisting of over 13,000 acres situate near Six Prong, in the state of Washington; the consideration paid therefor being 20 cents per acre, or a total of $2,691.80, together with expenses in the amount of $20.

It is asserted that the defendants represented to plaintiff that they were desirous of procuring for themselves, for a term of years, the above-mentioned tract of land, as summer range for sheep, and that with his co-operation they could do so; that they were not prepared to use the range for the year 1920 on account of lack of stock, but that, if plaintiff would take the land for the season of 1920, they would procure the right to graze the range and let it to him at cost price to them that the plaintiff, relying upon the representations of defendants as to the cost per acre and the quality of the range, accepted the offer. Plaintiff claims that he later discovered that he had been deceived, in this: That the cost price to defendants was 15 cents per acre, and not 20 cents as represented, and that they had been at no expense in procuring the lease; further that, when his sheep were driven to the lands in question, he found that the lands leased to him were wholly worthless for summer range.

In addition to the foregoing, the complaint avers that this tract of land was situate about 75 miles from plaintiff's residence, and, it being difficult for plaintiff personally to examine the same, he requested that it be examined for him, whereupon, at defendants' request, one James Farley was taken to Washington for the purpose of making an examination of the range. The complaint further alleges:

That other and better range was fraudulently shown to Farley by defendants, with the representation that it was of the character of the range that was being procured for plaintiff by defendants. That Farley returned without examining the range involved herein, and, on account of the deception practiced upon him, reported favorably to the plaintiff upon that range. "That said representations that said range was summer range for sheep; that the defendants were procuring the same from other persons for the plaintiff; that the defendants desired to hold said range for themselves for the 1921 summer season; that they had to pay the sum of 20 cents per acre therefor; that James Farley had been upon and examined said range; and that the expenses of procuring said range for the plaintiff were $20--were each and all false, and the defendants knew them to be false, and the defendants made said false and fraudulent representations to the plaintiff with intent to deceive, cheat, and defraud the plaintiff, and for the purpose of inducing the plaintiff to purchase said grazing privileges without an examination thereof, and to pay therefor the sum of 20 cents per acre, and to pay the further sum of $20 pretended expenses, when in truth and fact said range was not summer range at all, and was of no value for that purpose. That the defendants were the owners of the grazing privileges on said lands on April 20, 1920 when they first consulted the plaintiff concerning the leasing thereof. That they paid for said range only 15 cents per acre, and were out nothing whatever as expenses in procuring said range for the plaintiff."

The complaint then avers plaintiff's ignorance of the falsity of the defendants' representations, and that he believing such representations to be true, relied thereon. To this complaint a general demurrer was filed, which was overruled by the court.

The defendants, answering, denied the allegations contained in the complaint, except the allegation of the partnership of defendants and of the sale of grazing rights by them to the plaintiff.

Defendants further pleading, made separate answer and defense to the complaint, and averred, among other things:

"That at no time did defendants, or either of them, make any representations that they had any knowledge of the character of said lands for summer range, or of the value or grazing quality of the same, or warrant in any manner such grazing, but, on the contrary, the plaintiff was duly informed by them that he could purchase only defendants' grazing rights at his own risk and responsibility, that he was warned and should personally inspect said lands and range before such purchase by him, and that, in the contract of transfer to him by defendants thereof, he expressly waived any representations respecting the character, value, or grazing quality of such range in the deal."

Plaintiff replied, and upon trial a verdict was returned by the jury, assessing plaintiff's damages in the sum of $1,875.80.

Defendants contend in their brief that--

"The court erred in overruling the demurrer to the complaint; in not compelling plaintiff to elect upon which ground of action he would pursue; in not granting our judgment of nonsuit; and in not instructing the jury to find for defendants."

Thomas Mannix, of Portland (C. H. Finn, of La Grande, and F. A. McMenamin, of Portland, on the brief), for appellants.

C. L. Sweek, of Heppner (Woodson & Sweek, of Heppner, on the brief), for respondent.

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

The bill of exceptions discloses a number of assignments of error relating to the reception of evidence to which we make no reference in this opinion. We deem all assignments of error not referred to in appellants' brief to have been waived.

In the case of Tracy v. Juanto, 103 Or. 416, 205 P. 822, this court, speaking through Mr. Justice Rand, said:

"Where no argument is presented in appellant's brief upon an assignment of error, it is deemed to have been abandoned and waived. See Miller Lumber Co. v. Davis, 94 Or. 507, 515, 185 P. 462; Donohoe v. Portland Ry. Co., 56 Or. 58, 61, 107 P. 964; Cody v. Black, 97 Or. 343, 345, 191 P. 319, 192 P. 282."

To like effect are Hahn v. Mackay, 63 Or. 100, 126 P. 12, 991; Domurat v. O. W. R. & N. Co., 66 Or. 135, 134 P. 313.

The first question presented is: Does the complaint state facts sufficient to constitute a cause of action? The defendants, in their opening brief on appeal, say:

"From an inspection of the pleadings this action was brought by respondent, apparently, to rescind the contract of assignment of the said pasturage and recover the entire consideration paid therefor."

The plaintiff's theory of the case is that it is not a suit for rescission of the contract, but an action for damages for false and fraudulent representations which induced the plaintiff to enter into the contract. At no time did the plaintiff attempt to rescind the contract. He chose to affirm the contract and get what feed he could for his sheep upon the leased range and bring an action for damages against the defendants for their alleged fraudulent representations. The plaintiff had a right to elect the remedy to be pursued in this litigation. Scott v. Walton, 32 Or. 460, 464, 52 P. 180, 181; Seeck v. Jakel, 71 Or. 35, 141 P. 211, L. R. A. 1915A, 679, and the cases there collected.

"It is often difficult, especially under the Code system of pleading, to determine the real cause of action set out in a pleading alleging fraud. But where the facts stated establish a cause of action for deceit, it is ordinarily immaterial by what name the action is designated. Since an action of deceit based on fraud in the procurement of a contract proceeds upon the theory of affirmance of the contract, the fact that the contract is set out as a matter of inducement does not stamp the action as one ex contractu; * * * and an averment indicating that the action is based on contract may be disregarded, if there are substantial averments of fraud. Where the complaint states a good cause of action for fraud and deceit, allegations relating to a rescission of the contract may be disregarded." 27 C.J. § 145, p. 29.

The complaint in the instant case could not sustain a suit to rescind the contract. When Carty made his alleged discovery of fraud, he made no offer to return his right to graze the lands under the contract, promptly, or at all. But, on the other hand, he retained possession of the lands and exercised his right to depasture his sheep thereon, and filed this action for damages on account of the averred fraud practiced upon him by the defendants.

In Riddle v. Isaacs, 97 Or. 404, 192 P. 398, this court, by Mr. Justice Burnett, wrote:

"In order to be a good pleading of fraud, the representations claimed to be false must be stated. The truth must be averred, so that the court may determine the falsity of the representations alleged to be fraudulent. It must appear that the individual making them knew they were false, and that he intended thereby to perpetrate a fraud; and, finally, that the party seeking to be relieved from the fraud relied upon such representations. This

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