Cawston v. Sturgis

• Decision Date: 03 February 1896
• Citation: 29 Or. 331,43 P. 656
• Parties: CAWSTON v. STURGIS. [1]
• Court: Oregon Supreme Court

43 P. 656

29 Or. 331

CAWSTON v. STURGIS. ^[1]

Supreme Court of Oregon

February 3, 1896

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Action by Sidney H. Cawston against Ira B. Sturgis. There was a judgment for plaintiff, and defendant appeals. Affirmed.

H.M Cake and E.B. Watson, for appellant.

S.R Harrington, for respondent.

BEAN, C.J.

This is an action to recover damages. On the 16th of July, 1891, the plaintiff purchased of the defendant a tract of land in Raven's View addition to Portland, known and designated on the plat as "lot No. 5," for the sum of $5,000. His cause of action, as stated in the complaint is, in substance, that for the purpose of cheating defrauding, and deceiving him, and inducing him to buy said land, the defendant falsely and fraudulently represented that it contained an area equal to 2 1/2 lots, 50 by 100 feet each; that he had had it measured and computed by a skillful surveyor and engineer; that said representations were known to the defendant to be false and fraudulent, and were made for the purpose of deceiving the plaintiff, and plaintiff relied thereon; that, owing to the irregular shape of the land, plaintiff was unable to calculate its area, but relied solely on the representations of the defendant in making the purchase and paying the consideration; that the said lot did not contain the area as represented, or any greater area than 2 lots, 50 by 100 feet; and, by reason of said false and fraudulent representations, plaintiff claims to be damaged in the sum of $1,000. The plaintiff also claims damages in a like sum for the failure of defendant to construct and grade the street about said lot 5. The answer denies the allegations of the complaint, and, upon the issues thus joined, a trial was had, which resulted in a verdict and judgment in favor of plaintiff for the sum of $995 on the first cause of action, and $1 on the second; and therefore the only questions material to be considered on this appeal are the assignments of error which relate to the first cause of action.

The evidence given at the trial tended to show that, during the negotiations for the sale of the land, the defendant represented and stated to plaintiff that it contained an area equal to 2 1/2 lots, 50 by 100 feet in size; that Brown the engineer who had laid out the addition for him, had computed the area of the lot, and that he had a memorandum of the estimate made by Brown; that plaintiff saw the property at two different times before he made the purchase, and saw four stakes which were set to mark its boundaries, but that it was of such an unusual and irregular shape that its contents could only be estimated by a person skilled in such matters; that plaintiff made no effort to ascertain its contents or the truth of defendant's representations, although the defendant told him where Brown resided; that these representations were false; and that Brown had never estimated the area of the lot for plaintiff, or told him it contained two lots and a half; and that, in truth and in fact, it only contained 12 square feet over two lots. Upon this state of the evidence, the defendant contends that, because plaintiff examined the land prior to his purchase, the means of ascertaining its quantity was as available to him as to the defendant, and, having failed to measure it or cause it to be measured, he cannot now be heard to say that he relied upon the defendant's representations, and was thereby deceived. But we think this contention is without merit. The land is of a peculiar and irregular shape, and, although plaintiff saw it before purchasing, it is manifest that, without an actual measurement by one skilled in such matters, he could not tell or even form a reasonable estimate as to its supposed area. The plaintiff, therefore, had a right to rely upon defendant's positive statement that he had the area of the lot calculated, and that it equaled 2 1/2 lots, 50 by 100 feet each, and was not bound to measure or cause it to be measured for himself. To turn him out of court under such circumstances, because he did not go to the trouble and expense of having the area of the land ascertained by actual measurement, but chose to rely upon defendant's representations, would be offering a premium upon fraud and deceit. Mere knowledge of the boundaries did not charge him with knowledge of its area, so as to relieve the defendant from responsibility for his false and fraudulent representations in reference thereto. Estes v. Odom, 91 Ga. 600, 18 S.E. 355; Speed v. Hollingsworth, 54 Kan. 436, 38 P. 496; Lynch v. Trust Co., 18 F. 486; Antle v. Sexton, 137 Ill. 410, 27 N.E. 691; Jackson v. Armstrong, 50 Mich. 65, 14 N.W. 702; Sears v. Stinson, 3 Wash. 615, 29 P. 205; Ledbetter v. Davis, 121 Ind. 119, 22 N.E. 744.

It is next claimed that it does not appear from the evidence that the representations of defendant were made with an intent to deceive the plaintiff, or that he relied upon them in making the purchase. A sufficient answer to this position is that the jury found against the defendant on both of these contentions. As all the evidence is not in the record, we must assume that such findings are supported by the testimony. And, besides, as Mr. Kerr says, "there is fraud in law if a man makes a representation which he knows to be false, or does not honestly believe to be true, with a view to induce another to act on the faith, who does so accordingly, and, by so doing, sustains damage, although he may have had no dishonest purpose in making the representation." Kerr, Fraud. & M. 55.

The court, after instructing the jury that, to entitle plaintiff to...