Union Pac. Ry. Co. v. Barnes, 440.

• Decision Date: 08 October 1894
• Docket Number: 440.
• Citation: 64 F. 80
• Parties: UNION PAC. RY. CO. v. BARNES.
• Court: U.S. Court of Appeals — Eighth Circuit

64 F. 80

UNION PAC. RY. CO. v. BARNES.

No. 440.

United States Court of Appeals, Eighth Circuit.

October 8, 1894

Willard Teller (Harper M. Orahood and Edward B. Morgan, on the brief), for plaintiff in error.

Charles M. Campbell, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

The writ of error in this case is sued out to reverse a judgment against the plaintiff in error, the Union Pacific Railway Company, for damages for false representations in the sale of a tract of land to Thomas H. Barnes. In the lifetime of Mr Barnes the case was before this court upon a demurrer to the complaint. It has now been tried to a jury, and the court below instructed them to return a verdict against the railway company, and upon this verdict the judgment complained of is based.

In Barnes v. Railway Co., 4 C.C.A. 199, 205, 54 F. 87, 92 12 U.S.App. 1, upon the demurrer to the complaint in this action, we held that it alleged in effect that the railway company falsely represented to Thomas Barnes that it had a grant from the government of, and was the sole owner of, a certain tract of land, that it made these representations to induce him to buy this land; that these representations did induce him to purchase it, and to pay the railway company for it $2,376.60; and that the company in fact had neither claim nor color of title to, and was not in possession of, the land in question. We held that this was a statement of facts sufficient to constitute a cause of action to recover damages for false representations, on the ground that, if the company knew its representations to be false, that was a fraud of the most positive kind; and if it did not know whether its statements were true or not, and yet made the positive averments of these facts as of its own knowledge, as the complaint alleged, that was a false and fraudulent statement that it did know these to be the facts, and, as these statements caused the same damage to the vendee, the company was equally liable in either event. 4 C.C.A. 201, 54 F. 89 12 U.S.App. 5. Accordingly we reversed the judgment sustaining the demurrer, and remanded the case for answer and trial. The railway company answered that the allegations in the complaint that it made these representations were untrue and upon the trial below the only evidence in support of them was that on February 8, 1878, the Denver & Pacific Railway &amp Telegraph Company made a written agreement with Barnes to sell this tract of land to him on condition that he would pay to it the sum of $2,376.60 in various installments on or prior to February 8, 1883, and that it would, upon such payment, 'cause to be made and executed unto the said second party (Barnes), his heirs and assigns, upon request, at the general land office of the first party (the railway company), and surrender of this contract, a deed conveying said premises is fee simple;' and that on October 20, 1881, Jay Gould and Russell Sage, as trustees of the Union Pacific Railway Company, which is the successor of the Denver & Pacific Railway & Telegraph Company, made a deed of this land to Barnes without covenants, in which they recited that the Denver & Pacific Railway & Telegraph Company, by its mortgage or deed of trust, conveyed to certain trustees all the lands granted to it by act of congress; that they had succeeded to the rights of such trustees; and that by virtue of the deed of trust they granted, bargained, sold, and conveyed the land in question to Barnes, his heirs and assigns. It is conceded that the contract of the Denver & Pacific Railway & Telegraph Company and the deed of the trustees are to be considered in this case as the contract and deed of the Union Pacific Railway Company, and we shall speak of them henceforth as such. The record now discloses the fact that the land in dispute was a part of an odd section within the limits of a grant of lands to aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific ocean under the act of July 1, 1862, and the acts amendatory thereof (12 Stat. 489), and that the title to this land would have passed to the railway company under that grant had it not been for the fact that a pre-emption or homestead claim, which had expired by limitation, or been abandoned before the agreement to sell this land to Barnes was made by the railway company, had attached to this tract before the line of the road was fixed by the filing of its map of definite location with the commissioner of the general land office. It also appears from this record that when the agreement of sale was made, and when the deed was executed, and indeed until the decision of the supreme court in Railway Co. v. Dunmeyer, 113 U.S. 629, 5 Sup.Ct. 566, in 1885, the railway...