Long v. Kendall

• Decision Date: 04 September 1906
• Citation: Long v. Kendall, 87 P. 670, 17 Okla. 70, 1906 OK 38 (Okla. 1906)
• Parties: LONG v. KENDALL.
• Court: Oklahoma Supreme Court

87 P. 670

17 Okla. 70, 1906 OK 38

LONG v. KENDALL.

Supreme Court of Oklahoma

September 4, 1906

Syllabus by the Court.

In the sale of real estate, the expression of a mere matter of opinion as to the value thereof, made by the vendor, where the truth of the statement can be as readily determined by the vendee as the vendor, and where no attempt is made to prevent an investigation by the vendee, and where the vendee has an opportunity to investigate, and does not investigate to determine the correctness of the opinion expressed as to value, such statement so made as to value by the vendor will not be treated as such fraudulent representations as would vitiate the contract, or be a cause for an action for fraud and deceit.

[Ed Note.-For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser,§§ 40, 52, 53.]

In the sale of property, where the means of knowledge are general and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunities, he will not be heard to say, in impeachment of the contract of sale on the grounds of fraud and deceit, that he was deceived by the vendor's misrepresentations.

[Ed Note.-For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser,§§ 40-43, 52, 53, 57.]

Where in the trial of a cause, certain evidence is offered, objected to, and the objection overruled, and the evidence permitted to go to the jury, and where certain instructions as to the law are given in favor of the defendant over the objection of the plaintiff, and after the jury have retired to deliberate on their verdict, and before a verdict is reached, the court, on reflection, concludes that the evidence was improper and the instructions wrong, and the court calls the jury into open court and by a written instruction withdraws such evidence and such instructions from the jury, if such evidence was improper and such instructions contrary to the law, such action of the court in withdrawing the same from the consideration of the jury will not constitute reversible error.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 130, 568.]

Appeal from District Court, Payne County; before Justice Jno. H. Burford.

Action by E. B. Kendall against Ben F. Long. Judgment for plaintiff, and defendant brings error. Affirmed.

This case was commenced in the district court of Payne county, Okl. T., on the 22d day of April, 1904, by E. B. Kendall, the defendant in error, against Ben F. Long, the plaintiff in error, to recover damages in the sum of $1,500 on an alleged guaranty in a contract of sale of a stock of merchandise which was made by and between the said E. B. Kendall and Ben F. Long on the 2d day of April, 1904. The part of said contract of sale wherein the plaintiff in the court below claimed that the defendant guarantied said stock of merchandise reads as follows: "The said Ben F. Long agrees with and hereby guarantees to said E. B. Kendall that the said stock of goods mentioned above are of the value of twenty-three hundred dollars ($2,300.00); that the cost mark of said goods is the cost mark representing the original cost of said goods at the wholesale house, and guarantee cost price at actual cost in St. Louis, Mo.; that the stock is not moth-eaten, not damaged in any manner more than an average stock of goods of its class." The said E. B. Kendall, defendant in error, claimed that the invoice of said goods according to the cost mark was only $1,946.12, and that the cost mark on said goods was 20 per cent. in excess of the actual cost of said goods at the wholesale house in St. Louis; that about one-half of said goods were almost worthless by being moth-eaten, rat-eaten, faded, spotted by water and exposure, shelf-worn, discolored, frayed, soiled, broken, and damaged by unskillful handling and packing to the amount of at least 75 per cent. of its original value; and that the same was damaged at least 60 per cent. more than an average stock of its class. To this petition the defendant, Long, plaintiff in error here, in his answer first admits the making of said contract, and claimed that said contract was altered by an executed oral agreement, which was made and entered into on the 4th day of April, two days subsequent to the making of the original contract. By the terms of said oral contract the said Kendall, defendant in error, accepted the stock of goods without invoicing the same, as the same had been shipped in inclosed boxes. The defendant in the court below also claimed damages in the sum of $1,650 for false and fraudulent representations which induced him to enter into the contract; that the said Kendall, defendant in error, falsely and fraudulently represented to him that the farm he was getting in exchange for this stock of goods was of great value, and was worth the sum of $3,500, when in truth and in fact the said farm was not worth to exceed the sum of $2,000. To this answer a reply of general denial was filed. On the trial of the case in the district court, the trial judge permitted the introduction of testimony as to the cross-petition of said Long, showing his damages for the false and fraudulent representations of the said Kendall as to the value of said farm, and instructed the jury on that subject as to the law. After the jury had been out deliberating on their verdict for a number of hours, the trial court called the jury into open court, and by a written instruction withdrew from the consideration of the jury all the testimony as to the statements of Kendall as to the value of the farm, and all instructions given on that subject, to which the defendant, Long, then and there excepted. Afterwards the jury returned a verdict in favor of the plaintiff, Kendall, in the sum of $547. Motion for new trial was made and overruled, and judgment rendered on the verdict, to all of which the defendant excepted, and brings the case here for review.

Charles E. Bush, for plaintiff in error.

W. B. Williams and Geo. P. Uhl, for defendant in error.

IRWIN J.

The first assignment of error to which the counsel for plaintiff in error cite the court as a cause for a reversal of this case is that the court erred in permitting the witness S.E McNaul to testify as to the value of the goods when he invoiced the same in 1904, at the town of Agra, Okl. The ground of the objection to the testimony of this witness in the court below was that he had not shown himself competent and qualified to testify on the subject. We think a reference to the case-made at pages 55 and 56 will show that this witness was fully qualified to testify. He there testified to many years' experience in the handling of this kind and character of goods, and that he had been for years a traveling salesman on the road, and is thoroughly familiar with the quality and price of said goods. The objection urged by counsel for plaintiff in error is that, while he has shown a general qualification and general knowledge of this class of goods and their prices, he has not shown that he ever had any experience in the particular locality where this transaction occurred. We do not think this objection is tenable. The question here before the jury was as to the general depreciation of said goods and the percentage of depreciation of the particular goods in question. This, it seems to us, would not be dependent upon questions of latitude and longitude, and would not depend on any particular locality. We think the depreciation, when measured by the prices, would be the same, whether in Maine or Texas; and this is the opinion given the expert in his testimony on page 62 of the record, when he was asked the question as to whether the depreciation would vary with localities or whether it would be general. The answer is: "The depreciation would be general. It don't make any difference whether it was in Texas or California, in my judgment." And this we think was reasonable. The question was, what was the general depreciation of this stock of goods in connection with the values, disclosed in the evidence? That depreciation was asked for, based upon a percentage as to the cost price, and while the cost price might be different in different localities, where the estimate is based upon the percentage of the cost...