Hooker v. Wilson

• Decision Date: 08 January 1918
• Docket Number: 6729.
• Citation: 169 P. 1097,69 Okla. 43,1918 OK 23
• Parties: HOOKER et al. v. WILSON.
• Court: Oklahoma Supreme Court

169 P. 1097

69 Okla. 43, 1918 OK 23

HOOKER et al. v. WILSON.

No. 6729.

Supreme Court of Oklahoma

January 8, 1918

Syllabus by the Court.

In determining the existence of fraud, any evidence, direct or circumstantial, which is competent by other rules of law, and which in the opinion of the court has a legitimate tendency to prove or disprove the allegations in the issue, is admissible. Great latitude is allowed in the introduction of evidence; the extent of the investigation being largely in the discretion of the trial court. The whole transaction involving the alleged fraud may be given in evidence.

A person induced by false and fraudulent representations to purchase or exchange his property may retain that which he has received and bring an action at law to recover the damages sustained by reason of his reliance upon the fraudulent representations.

Fraud and deceit always may be timely raised and vitiate every contract into which they are injected, and destroy the validity of everything into which they enter, and the party cannot hide behind a contract procured in the general scheme of his misconduct with the assertion that all representations whether false or otherwise made previous to a written contract are merged therein.

The erroneous refusal of a trial court to sustain an objection to improper argument will not require a reversal of a case unless the same has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right.

Commissioners' Opinion, Division No. 2. Error from District Court, Jackson County; Frank Mathews, Judge.

Action by George W. Wilson against Harley J. Hooker and Kenneth M Wishart, partners, doing business under the firm name of Hooker & Wishart. Judgment for plaintiff, and defendants bring error. Affirmed.

Everett Petry, of Altus, and Chas. H. Garnett, of Oklahoma City, for plaintiffs in error.

W. C Austin, of Eldorado, C. A. Hatch, of Clovis, N. M., and Keaton, Wells & Johnston, of Oklahoma City, for defendant in error.

WEST C.

This cause was instituted by Geo. W. Wilson, defendant in error against Harley J. Hooker and Kenneth M. Wishart, plaintiffs in error, in the district court of Jackson county, Okl., on the 20th day of September, 1913. The parties will be hereinafter referred to as they appeared in the trial court.

Plaintiff brought this suit against defendants to recover damages on account of the fraud and deceit which he alleged was practiced upon him in a certain transaction wherein defendants deeded plaintiff 215 acres of land in Jackson county, Okl., to be delivered on the 1st day of January 1914, at which time 200 acres was to have been set to alfalfa with good stand thereon, and water rights secured from the Alfalfa Irrigation Company of Altus, Okl., permitting the first appropriation of water from Sandy creek running through section 5, in which section the 215 acres was located, alleging that defendants represented the supply sufficient to irrigate the farm set to alfalfa, and that defendants would erect, construct, and equip an irrigation plant for the purpose of impounding and distributing the water from said creek over said farm, said plant to consist of a good, substantial, concrete dam across the creek with pump and engine of approved make sufficient to distribute the water from said lake over said farm, and that they would build underground water pipes from said creek to the highest point on said farm, and would construct ditches and laterals in a good, workmanlike manner to distribute the water over the entire 215 acres.

Plaintiff alleged that this had not been done on the part of the defendants, and could not be done for the reason that the water right could not be secured, and, if secured, the water supply would be insufficient to irrigate said land, and that defendants had no intention to comply with their contract, but to fulfill the same just so far and no further than was necessary to get possession of the consideration plaintiff had agreed to give for the land, all of which was denied, defendants answering further that they had fulfilled their contract, and that they were guilty of no fraud, and that, if guilty, that part of the fraudulent representations pleaded by plaintiff could not be raised for the reason that they were merged into the deed of conveyance. Upon these issues the case went to trial to a jury, and a verdict of $18,000 was rendered in favor of the plaintiff, to review which defendants bring this cause here.

While there are a number of assignments of error, they may be considered under the two following heads: (1) Could plaintiff under proper pleadings show the false and fraudulent representations made by defendants to him relative to the character and kind of soil, its suitableness for alfalfa, ability to procure and convey valid water rights to Sandy creek, to properly irrigate this 215 acres, and as to the sufficiency of water in said creek to properly irrigate said land made prior to the execution of an executory contract by plaintiff for the purchase of said lands? (2) As to whether or not the court submitted to the jury the proper measure of damages.

We have carefully read the record in the case, and there can be no doubt that it was the intent, object, and purpose of plaintiff to purchase the 215 acres with 200 acres set to alfalfa and a good stand thereon, with an irrigation plant that would irrigate said land and the rights to appropriate the waters of Sandy creek, which plaintiff thought, and which had been represented to him as, amply sufficient to furnish water to irrigate this farm, and there is proof to sustain the contention of plaintiff that the defendants represented that they would sell plaintiff and turn over to him such a farm at the expiration of their lease on the same.

There can be little question that the purported assignment of the water rights by the Alfalfa Irrigation Company to plaintiff was of little or no value. In the first place, they had no such rights, and, in the second place, could not convey them. It is true that plaintiff might be able, on account of the effort made by the defendant to install an irrigation plant on Sandy creek and appropriate the same for the use of the 215 acres of land in question, to finally secure by appropriation a water right. As to whether or not this could be done would be a matter of conjecture depending upon whether or not plaintiff under the circumstances could comply with law so as to perfect the right attempted to be acquired, and whether or not there was another prior water right, and whether or not there was in fact sufficient water in said creek to irrigate this land, even if he should finally succeed in securing the right by appropriation.

Sections 993 and 994, R. L. 1910, are as follows:

"993. Damages for Deceit.-One who willfully deceives another, with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.

994. Deceits Classed.-A deceit, within the meaning of the last section is either:

First. The suggestion, as a fact, of that which is not true by one who does not believe it to be true.

Second. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true.

Third. The suppression of a fact by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or,

Fourth. A promise, made without any intention of performing."

In 42 Okl. 330, 141 P. 272, Hankins v. Farmers' & Merchants' Bank, the second paragraph of the syllabus is as follows:

" Fraud-Evidence-Admissibility.-'In determining the existence of fraud any evidence, direct or circumstantial, which is competent by other rules of law, and which in the opinion of the court has a legitimate tendency to prove or disprove the allegations in the issue, is admissible. Great latitude is allowed in the introduction of evidence, the extent of the investigation being largely in the discretion of the trial court, and objections to circumstantial evidence on the ground of irrelevancy are not favored. Circumstantial evidence to show fraud may well be

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