Stine Lumber & Shingle Co. v. Hemenway
Decision Date | 29 December 1920 |
Citation | 194 P. 850,33 Idaho 384 |
Parties | STINE LUMBER & SHINGLE COMPANY, a Corporation, Appellant, v. FRANK E. HEMENWAY, Respondent |
Court | Idaho Supreme Court |
FRAUD-INSTRUCTIONS.
1. Instructions given examined and found to state the law applicable to the case correctly.
2. Instructions offered by appellant and refused by the court examined, and so far as not included in the instructions given, found not to state the law correctly, and to be inapplicable to the evidence.
APPEAL from the District Court of the Eighth Judicial District, for Benewah County. Hon. John M. Flynn, Judge.
Action for damages. Judgment for defendant. Affirmed.
Judgment affirmed. Costs awarded to respondent.
E. N La Veine, for Appellant.
The theory upon which the court instructed the jury was not the correct interpretation of the law applicable thereto. (Breshears v. Callender, 23 Idaho 348, 131 P. 15.)
The refusal of the court to give plaintiff's requested instructions was reversible error. Instruction A (Branson's Instructions to Juries, pp. 542, 613 (4) and (5).) Instruction B. (5 Words & Phrases, 4588-4596.) Instruction C. (Instructions to Juries, Blashfield Forms (1903 ed.), pp. 1148, 2787.) Instruction D. (20 Cyc. 483 "Duty to Inquire," b.) Instruction E. (Branson's Instructions to Juries, p. 469.) Instruction F. (Branson's Instructions to Juries, p. 611.)
Potts & Wernette, for Respondent.
The instructions given by the court, taken as a whole, clearly state the law applicable to the case. (Osborn v. Cary, 28 Idaho 89, 152 P. 473; Tarr v. Oregon Short Line R. R. Co., 14 Idaho 192, 25 Am. St. 151, 93 P. 957; Lufkins v. Collins, 2 Idaho 256, 10 P. 300; Hansen v. Haley, 11 Idaho 278, 81 P. 935.)
Instruction No. 5 has been expressly approved. (1 Brickwood, Sackett's Instructions, p. 744; Taylor v. Lytle, 29 Idaho 546, 160 P. 942.) Instruction No. 8 states the law as announced in Johnson v. Holderman, 30 Idaho 691, 167 P. 1030. Instructions Nos. 9 and 10, requiring that the representations must have been as to matters of fact, and no mere expressions of opinion, state the settled law in cases of this kind. (20 Cyc. 17; Holton v. Noble, 83 Cal. 7, 23 P. 58; Doran v. Eaton, 40 Minn. 35, 41 N.W. 244; Buxton v. Jones, 120 Mich. 522, 79 N.W. 980; Mayo v. Wahlgren, 9 Colo. App. 506, 50 P. 40; Kincaid v. Price, 82 Ark. 20, 100 S.W. 76; Van Horn v. O'Connor, 42 Wash. 513, 85 P. 260; Bossingham v. Syck, 118 Iowa 192, 91 N.W. 1047.)
This is an action brought by appellant to recover damages for certain alleged fraudulent representations, claimed to have been made by respondent, to induce appellant to purchase a body of cedar timber.
Appellant seeks to predicate error upon the giving of certain instructions by the trial court, and the refusal to give certain instructions offered by appellant. The instructions as given substantially state the law applicable to the case.
The description of the property conveyed by the timber deed is as follows:
The instructions offered by appellant and refused, with the exception of Instruction "B," were instructions relative to the law of fraud as applied to the case in hand, and so far as they correctly stated the law the substance was included in the instructions given. Instruction "B" is as follows:
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