Jeffreys v. Weekly

• Citation: 81 Or. 140,158 P. 522
• Parties: JEFFREYS v. WEEKLY ET AL.
• Decision Date: 11 July 1916
• Court: Supreme Court of Oregon

158 P. 522

81 Or. 140

JEFFREYS v. WEEKLY ET AL.

Supreme Court of Oregon

July 11, 1916

Department 2.

Appeal from Circuit Court, Coos County; John S. Coke, Judge.

Suit by John S. Jeffreys against I. T. Weekly and another. From a decree for defendants, plaintiff appeals. Decree reversed and one entered for plaintiff.

This is a suit in equity for the rescission of an executory contract for the purchase by plaintiff of a ranch in Coos county, Or. The circuit court found in favor of the defendants, and rendered a decree accordingly. Plaintiff appeals. The purchase price was $10,500. Plaintiff paid $3,500 at the time of the execution of the contract on January 8, 1914, and went into possession of the farm in February of that year. The gist of the plaintiff's complaint is that at the time of making the agreement, as an inducement to the plaintiff to purchase the land, defendants made the following representations to the effect: (1) That the described premises contained 60 acres of bottom land, 58 of which were improved and 2 of which were covered by a hard maple growth (2) that the water system on the lands was supplied from a live spring, and afforded sufficient water the year around for all domestic purposes and for the watering of the live stock on the ranch; (3) that the defendants were selling to plaintiff a merchantable title to the premises, except as to the lands theretofore conveyed to the school district. These representations were alleged by the plaintiff to be false. He averred that there were not to exceed 34 acres of bottom land, nor more than 32 of it improved; that he came to Coos county only a few weeks before the making of the contract having resided for about 35 years in the eastern part of Washington on an open, rolling prairie; that he was unacquainted with the topography of lands similar to those purchased, and therefore, upon viewing the land, was unable accurately to estimate its acreage, or to compute its area on account of his inability to read or write; that he first became suspicious that the representations of the acreage were false in the spring of 1914, when he obtained the assistance of a neighbor, and roughly ascertained that there was a material shortage; that in July, 1914, he employed a civil engineer and caused the land to be surveyed; that the bottom lands are reasonably worth $125 an acre; that the water system does not afford sufficient water for either domestic purposes or for the watering of the live stock upon the premises, which he discovered during the summer season of 1914; that about May 11, 1907, the defendants had sold to O C. Rice all the merchantable timber from the tract, except the maple wood of the bottom land, and had given the purchaser 15 years from the date of the deed to remove the same; that the first intimation he had of the Rice transfer was when a logger came there about May 1st to see about cutting the timber, and the first certain knowledge of it came to him through his attorneys, whom he consulted in July, 1914; that at the time of making the contract he relied upon the representations of the defendants; that the exception of the Rice deed was mentioned in the written agreement, but was not understood by him; that the ranch was worth several thousands of dollars less than it would have been if the representations had been true; that on August 19, 1914, soon after the discovery of the falsity of the representations, he rescinded the contract, delivered to the defendants notice of rescission, and tendered the property to them, which they refused. Defendants deny the making of any false representations, and aver that I. T. Weekly, defendant, told the plaintiff that the lands had never been surveyed, except a parcel of 7 acres; that he also told him that there were about 58 acres of bottom land, 2 acres of which were covered by a hard wood growth; that he did not guarantee, warrant, nor misrepresent the number of acres of bottom land, and that the same was given only as a matter of opinion by him; that plaintiff examined the premises before making the contract, and had an opportunity to estimate the area of the different kinds of land; that defendants never knew the exact amount of bottom land or plow land on the ranch; that plaintiff was informed that the water in the spring went low in dry seasons, and also of the sale of the timber to O. C. Rice. Defendants further averred that, after obtaining full knowledge of the condition of the land, plaintiff treated the property as his own, and was thereby estopped from claiming the relief prayed for in his complaint. The reply puts in issue the new matter of the complaint, and alleges that after the discovery of the fraud plaintiff exercised dominion over the premises only for the purpose of preserving the same.

Cassius R. Peck, of Marshfield (Peck & Peck, of Marshfield, on the brief), for appellant. L. A. Liljeqvist, of Marshfield (A. J. Sherwood, of Coquille, on the brief), for respondents.

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

It appears from the evidence that a short time before the making of the contract plaintiff was introduced to defendant I. T. Weekly, and among the first questions which he asked in making the negotiations for the purchase of the farm was how many acres of bottom land there were. The only dispute in regard to the answer given by Weekly is whether or not he said there were 60 acres, 2 of which were maple grove and 58 susceptible of plowing, or whether he said there were "about" that many. The estimate of the value of the bottom land, which appears to be the most valuable part of the farm, varies from $125 to $250 an acre. The remainder, except about 2 or 3 acres of bench land upon which the buildings are situated, is estimated to be worth about $15 or $20 an acre. A fair valuation of the bottom land would seem to be $150 an acre. Plaintiff employed a Mr. Gettings, a civil engineer, to measure the bottom lands. According to his survey there were 37.38 acres thereof, 31.69 of which were in cultivation. Defendants engaged Mr. Gould, the county surveyor, to make a measurement, which showed 40 acres of bottom land, 36 acres of which could be cultivated and 32 that had been improved.

There is considerable evidence in the record as to the exact language that was used by Weekly. Plaintiff, who signs his name with a cross, was informed that he could rely upon the information given him by defendant Weekly, and it appears that he did so. As shown by the two surveys, there is but little difference in the area of the bottom land, which is accounted for principally by a variation as to what was considered bottom land in making the same. In his measurement the county surveyor included the land between high and low water mark on the river. Whatever language defendant employed, the record shows that he intended to induce the plaintiff to believe that there were about 60 acres of valuable bottom land, 58 of which could be cultivated. The introduction of the words "about" or "estimated" or "more or less" in a conveyance or a contract for a conveyance does not afford a shield against liability for false representations, and the mere fact that a deficiency is very large in proportion to the supposed quantity is often treated as in itself evidence of fraud or mutual mistake. Boddy v. Henry, 126 Iowa, 31, 101 N.W. 447, 452; Brawley v. United States, 96 U.S. 172, 24 L.Ed. 622; Belknap v. Sealey, 14 N.Y. 155, 67 Am. Dec. 120; Hosleton v. Dickinson, 51 Iowa, 244, 1 N.W. 556; Estes v. Odom, 91 Ga. 600, 18 S.E. 356, 357; Harrell v. Hill, 19 Ark. 102, 68 Am. Dec. 208.

The main contention of the defendant, and, as we understand the record, the principal reason for the finding of the trial court, is that the defendant Weekly qualified his statement by saying that there were "about" 60 acres; and that this was not a false statement, but an expression of an opinion, and that plaintiff was given an opportunity to inspect the land for himself. It appears that the defendant had resided upon the land for about 40 years, and had cleared and cultivated the bottom land, in regard to which there is the principal controversy; that the plaintiff visited the premises before making the bargain, and examined the bottom land, which is in an irregular shape, a portion of it being situated upon both sides of Elk creek which is winding and flows into the East fork of the Coquille river, and another part located upon the river somewhat at a right...