Fitzpatrick v. Sletten

• Decision Date: 02 February 1926
• Citation: 242 P. 1114,117 Or. 173
• Parties: FITZPATRICK v. SLETTEN ET AL.
• Court: Oregon Supreme Court

242 P. 1114

117 Or. 173

FITZPATRICK v. SLETTEN ET AL.

Supreme Court of Oregon

February 2, 1926

Department 2.

Appeal from Circuit Court, Multnomah County; J. W. Hamilton, Judge.

Action by Charles Fitzpatrick against O. O. Sletten and another. Judgment for defendants, and plaintiff appeals. Affirmed.

This action was instituted by the plaintiff to recover damages from the defendants resulting from alleged false representations which induced the plaintiff to purchase an interest in the Scandia Card & Soft Drink Room, 266 Burnside street, Portland, Or. The defendants are brokers and realtors. They inserted in the Oregonian an advertisement which the plaintiff claims to have been false and misleading upon which he relied, and by which he was induced to make the purchase which advertisement was as follows:

"$3,000.00 card room, lunch, and soft drinks, well located, $100.00 daily receipts, equipment cost $6,500.00 last year, low rent, long lease, some terms, owner has other business. Morris with O. O. Sletten, Realtor, 415 Ry. Exchange Buildg."

The case was tried to the court without a jury. The court's finding of fact is as follows:

"(1) That the plaintiff did not make a prudent investigation of the business and property he purchased, and that he had the opportunity so to do."

"(2) That the plaintiff has not proved fraud on the part of the defendants or either of them, as alleged in plaintiff's complaint."

The plaintiff appeals and assigns as errors the refusal of the court to allow the plaintiff to testify from his books and records kept by him in his own writing as to receipts and expenses of the business; in refusing to allow a certified copy of the judgment rendered in plaintff's favor against Leslie Jones, from whom plaintiff purchased the property that the findings of fact and conclusions of law are not sustained by the evidence, and that the findings of fact and conclusions of law are not sufficient upon which to base the judgment.

Ernest Cole, of Portland, for appellant.

A. D Leedy and C. A. Appelgren, both of Portland, for respondents.

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

The plaintiff had rescinded his purchase of a half interest of said property, and had sued and recovered judgment against his vendor for the amount paid for the property. He was unable to collect his judgment except a small portion thereof. For the purpose of showing that he had been unable to collect the judgment and that execution had been issued on said judgment, he offered in evidence a judgment against his vendor. The court refused to admit the certified copy of the judgment against his vendor, but permitted the plaintiff to testify as to the amount of the judgment and the amount that had been paid on it. The fact plaintiff desired to prove was not denied by the defendants. It was not error, therefore, to sustain an objection to the admission of the judgment roll. The judgment was not involved in the instant litigation. There was no issue about the amount of the judgment.

For the purpose of proving the amount of plaintiff's damages, he testified to the daily receipts of the business during the short time he was in charge thereof. One of the particulars in which the statements appearing in the advertisement was false was that the receipts were $100 per day. Plaintiff testified that the receipts were about $10 a day and the expenses $20 per day. The court permitted the plaintiff to testify fully and in detail regarding the daily receipts. Plaintiff complains because the court did not allow him, over the objection of the defendants, to introduce his books in which he kept an account of said receipts and expenditures. Section 859, Or. L. We do not believe the court erred in that ruling. The exact amount of the receipts and expenditures were immaterial. The items of the account were not involved. The plaintiff desired to use the books to refresh his memory "as to the exact daily receipts and expenses of said business from his books." He alleged in his complaint that the receipts did not exceed $10 per day, and that the expenses were $20. He was able to testify in support of his complaint without reference to any memorandum.

"A witness having an independent recollection of a fact is not permitted to produce a memorandum, such a paper being used only for the purpose of refreshing his recollection." Hall v. Brown, 102 Or. 389, 393, 202 P. 719, 720; Friendly v. Lee, 20 Or. 205, 25 P. 396.

The particular items making up the receipts and expenses were immaterial to the issues joined in this action.

The plaintiff complains that the first finding of fact quoted above is outside of the issues, and is therefore a nullity. If we concede that the finding is a nullity, then it is harmless. It is a rule of law that a person seeking damages on account of fraud by reason of misrepresentation made to him where by he was induced to buy property must use reasonable care for his own protection, and should not rely blindly on statements made by the seller. McCabe v Kelleher, 90 Or. 45, 175 P. 608; Reimers v....