Cobb v. Peters

• Decision Date: 02 December 1913
• Citation: 136 P. 656,68 Or. 14
• Parties: COBB et al. v. PETERS et al.
• Court: Oregon Supreme Court

136 P. 656

68 Or. 14

COBB et al. v. PETERS et al.

Supreme Court of Oregon

December 2, 1913

Department 2.

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

Action by James A. Cobb and another against J. Peters and another. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

This is an action to recover from the defendant $2,100, the alleged value of certain goods sold by plaintiffs to defendant. It is alleged:

"II. That on or about the 9th day of February, 1911, the defendants conspired with one James F. Roth to defraud the plaintiffs out of a stock of groceries, fixtures, team, and delivery wagon, owned by said plaintiffs *** by falsely and fraudulently representing to said plaintiff that James F Roth was the owner in fee simple of a certain timber claim situate in Douglas county, Oregon, and offering to trade said timber claim to said plaintiffs for their stock of groceries, fixtures, team, and delivery wagon *** invoiced at $2,100.

"III. That J. Peters, one of the above-named defendants herein offered an unfinished house at Hood River, Oregon, or the above-described timber claim to the plaintiff, at an even trade for the said stock of groceries, fixtures, team, and delivery wagon; that said plaintiffs decided to take the timber claim, and the deal was consummated, plaintiffs taking said above-described timber claim for their stock of groceries, fixtures, team, and delivery wagon. ***

"VII. That on the ______ day of April, 1911, it developed that James F. Roth never had title to the timber claim above described and set forth that had been traded to these plaintiffs for their stock of groceries, fixtures, team, and delivery wagon; that all the deeds and papers passing title to said James F. Roth had been rank forgeries, and that said title was in Mr. Geo. E. Dunn and Mrs. M.H. Lott, of the state of Kansas; that the plaintiffs had been swindled and defrauded out of their stock of groceries, fixtures, team and delivery wagon."

The answer denies generally each and every allegation of the complaint, except those expressly admitted, and affirmatively pleads the facts of the transaction as claimed by defendants. There was judgment for plaintiffs, and defendants appeal.

Walter G. Hayes and A.M. Dibble, of Portland (Malarkey, Seabrook &amp Dibble, of Portland, on the brief), for appellants.

E.R Ringo, of Salem (E.C. Geeslin, of Portland, on the brief), for respondent.

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

Both plaintiffs and defendants have treated the action as one to recover damages for false representations. The attorneys and court tried the case on that theory, and we cannot consider any other on this appeal. The complaint fails to state facts sufficient to establish a liability against the defendants for false representations. In such a case it is necessary to plead that the representations were false, that the defendant knew them to be false, that they were made with intent to defraud, and that the parties seeking...