Specht v. Allen

• Decision Date: 24 March 1885
• Citation: 12 Or. 117,6 P. 494
• Parties: SPECHT v. ALLEN.
• Court: Oregon Supreme Court

6 P. 494

12 Or. 117

SPECHT v. ALLEN.

Supreme Court of Oregon

March 24, 1885

R. Williams, for appellant.

W.B Gilbert, for respondent.

THAYER, J.

This appeal is from a judgment of the circuit court for the county of Multnomah, recovered by the respondent against the appellant in an action upon a promissory note, alleged in the complaint in said action to have been executed by the appellant to the respondent on the twenty-first day of March 1883, at Portland, Oregon, for the payment of $3,250, and interest and reasonable attorney's fees, upon which he claims a balance of the sum of $1,600, for which he demanded judgment, with accruing interest and costs, including such attorney fee as the court should adjudge reasonable. The appellant filed an answer to the complaint, denying any indebtedness, and in which he set forth, as a further defense and counter-claim, that he bargained with the respondent for the purchase of certain real property, situated in the county of Columbia, state of Oregon, opposite to the town of Kalama, in Washington Territory, claimed to be owned by the respondent; that upon proposing to purchase said land and as a part of the consideration for such purchase, he requested the respondent to point out to him the exterior boundaries of the said land, which the latter agreed to do and took him upon a part of the land and pointed out as the exterior boundary, upon the westerly side, a line which would include a certain stream of water, known as "Tide Creek," from its mouth extending back for a distance of about a third of a mile; that he pointed out as another exterior boundary a line or direction which would include a portion of the lower end of Deer island, in the Columbia river, also include a considerable tract of the shore or bank of said river, and land covered by shallow water contiguous thereto, amounting to about eight acres, and represented that the boundary line on the river side extended into said Columbia river to navigable water for sea-going vessels and large steam and ferry boats; that in order to induce the appellant to purchase said land, the respondent further represented to him and declared that the water along the front of said land, at its boundary line, was of navigable depth at all seasons for large sea-going vessels; that a ship could lay anywhere from the foot of Deer island along the boundary line of the land to the corner near the mouth of Tide creek; that there was 24 feet and upwards of water anywhere from the Oregon shore to the Washington Territory shore, at low water; and further represented, to induce him to purchase the land, that it was the only place where there was a sufficient depth of water in the Columbia river, extending across the river where the Northern Pacific Railroad Company could ply their railroad ferry; that appellant, relying upon the honesty of the respondent, and the truthfulness of said representations made by him, was induced to purchase said tract of land at a very high figure, and at a price and cost far above its actual value, paying for three-quarters of 408 acres the sum of $15,000, while, in truth and fact, said land was wholly worthless; that, relying upon the truthfulness of said declarations, representations, and statements of the respondent, appellant purchased said land for a town-site; that it was wholly unfit for a town-site, and worthless for that purpose; that each and every of the said representations, declarations, and statements were false, and the respondent knew them to be so when he made them, and that they were made by him with the intention and for the purpose of inducing the appellant to purchase the land at the said price; that the said promissory note was given for the purchase price of said land; that appellant did not discover the falsity of the said statements, representations, or declarations until some time after the date of the last payment made upon the said note, and wherein the appellant claimed that he had been damaged thereby in the...