Darling v. Miles

• Decision Date: 28 November 1910
• Citation: 111 P. 702,57 Or. 593
• Parties: DARLING v. MILES.
• Court: Oregon Supreme Court

111 P. 702

57 Or. 593

DARLING v. MILES.

Supreme Court of Oregon

November 28, 1910

Appeal from Circuit Court, Multnomah County; Thomas O'Day Judge.

Action by Thomas Darling against S.A. Miles. Judgment for the defendant upon findings of fact made by the trial court, and the plaintiff appeals. Reversed and remanded.

This is an action by plaintiff to recover damages suffered by reason of the fraudulent representation made by defendant in the sale of certain lots. The complaint alleges that on "the 20th day of July, 1906, the defendant herein did, with intent to cheat and defraud the plaintiff, falsely and fraudulently represent to the plaintiff that he was the absolute owner in fee, free from incumbrance, of lots six (6) and seven (7) in block five (5), in Pleasant View addition, *** in the city of Portland, and that lot six (6) was 46.9 feet by 100 feet, *** when in truth and in fact the defendant at that time was not and well knew that he was not, the owner of the south fifteen (15) feet of said lot six (6) free from incumbrance, and plaintiff alleges that the public then had a right to use the said 15 feet as a highway, and the defendant then knew it that plaintiff herein relied upon the truth of the statement of the defendant and believed the same, and on July 20, 1906 he did, by reason of such reliance and belief, purchase *** and received from the defendant his warranty deed, wherein and whereby the grantors certified that the said premises were free from all encumbrances. ***" All these allegations are denied by the answer, except that defendant admits the execution and delivery of the deed, with covenants and warranty, as alleged in the complaint. The action was tried by the court without a jury. At the close of the testimony the court made the following finding of facts: "The court finds that on or about the 20th day of July, 1906, the plaintiff purchased from the defendant lots 6 and 7 in block 5, Pleasant View addition, Multnomah county, Oregon, for a valuable consideration, and received from the defendant a general warranty deed therefor. That the south 15 feet of said lot 6 is subject to a right of way of the public to use the same for a highway, that said sale was made without any fraud on the part of the defendant, and without any fraudulent representations in regard thereto." Judgment was rendered thereon in defendant's favor, from which plaintiff appeals.

Otto J. Kraemer, for appellant.

Geo. A. Brodie, for respondent.

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

Plaintiff contends that the findings of fact do not support the judgment, and to this we agree. Section 158, B. & C. Comp provides that when an action is tried by the court, without the intervention of a jury, the decision shall state the facts found, and such decision shall be entered in the journal, and judgment entered thereon accordingly. The finding that "the sale was made without *** any...