Greig v. Interstate Investment Co.

COSHOW, J. As a rule representations as to value of real property are not actionable: Southern Oregon Orchards Co. v. Bakke, 106 Or. 20, 29 (210 Pac. 858); McCabe v. Kelleher, 90 Or. 45, 54 (175 Pac. 608); Rumbaugh v. Settlemeier, 88 Or. 105, 108 (171 Pac. 560); Society of Doukhobors v. Hecker, 83 Or. 65, 75 (162 Pac. 851). But when a representation of value is accompanied by a statement of fact which is false and known to be false by vendor, then such representation is actionable: Society of Doukhobors v. Hecker, 83 Or. 65, 75 (162 Pac. 851); Allen v. McNeelan, 79 Or. 606 (156 Pac. 274); Aitken v. Bjerk *20 vig, 77 Or. 397 (150 Pac. 278); Carty v. McMenamin et al., 108 Or. 489 (216 Pac. 228); Allen v. McNeelan, above, page 610 of tbe official report, quoted from People v. Peckens, 153 N. Y. 576 (47 N. E. 883), with approval, is the following language: “ ‘ * * But, where the statements are as to value or quality, and are made by a person knowing them to be untrue, with an intent to deceive and mislead the one to whom they are made, and he is thus induced to forbear making inquiries which he otherwise would, they may amount to an affirmation of fact rendering him liable therefor. In such a case, whether a representation is an expression of an opinion or an affirmation of a fact is a question for the jury. The rule that no one is liable for an expression of an opinion is applicable only when the opinion stands by itself as a distinct thing.’ ” In the light of that statement of the law the complaint states a cause' of action. In the instant case the representation of the value of the property was coupled with the false statement that $3,000 was the least that the owner would take for the land; that the defendant Boss knew such statement to be false when he made it; that he intended that the plaintiff should rely upon that statement; the plaintiff did rely upon it and was thereby damaged. The statement that $3,000 was the legist that the owner would take for the property was intended to induce the plaintiff to believe that the property was of that value. The defendant Boss was acting for the plaintiff as well as for the owner of the Eden Tract. He knew that the plaintiff was ignorant of land values. He knew that plaintiff was relying upon Boss’ judgment as to the value of the Eden Tract: Boord v. Kaylor, 114 Or. 62 (234 Pac. 263). Other helpful cases are Stevens et al. v. Reilly, 56 Okl. 455 (156 *21 Pac. 157); Booker v. Pelkey, 173 Wis. 24 (180 N. W. 132); Warder et al. v. Whitish, 77 Wis. 430 (64 N. W. 540); Foot v. Wilson, 104 Kan. 191 (178 Pac. 430). The evidence in behalf of the plaintiff tended to support the allegations of fraud in the complaint. The evidence tends to show a relation between the plaintiff and the defendant Boss bordering very closely to being fiduciary. Plaintiff testified that Boss told him the deal which involved the transfer of the tracts was a five-cornered deal and was too deep for the plaintiff. Plaintiff had been a seafaring man all his life and knew very little, if anything, about the values of real property. He had followed the trade of ship-rigging in Portland, except at odd times when he assisted in moving houses. The representations of defendant Boss may well have prevented plaintiff from making independent investigations regarding the value of the Eden Tract which he took in exchange for his Collins Tract. The court ruled rightly in denying the motion for a nonsuit in behalf of defendant and also denying the motion presented by the defendants for directed verdict in their favor. The principal contention on the part of the defendants as to the instructions is that the court’s instructions regarding the measure of damages were inconsistent with each other. The court instructed the jury, at the request of plaintiff, to the effect that his measure of damages was the value of his equity in the Collins Tract property. By request of defendant he instructed the jury as follows: “The measure of damages, if any, in this case, is the difference between the market value of the property parted with by the plaintiff and the market value of the property received by him.” *22 These instructions represent the two theories presented by the pleadings. According to the theory of plaintiff his interest in the Collins Tract was no part of the consideration for the Eden Tract. The owner of the Eden Tract got no part of or interest in the Collins Tract. The owner of the Eden Tract knew nothing about defendant corporation receiving the Collins Tract until about two years after the exchange was made. The full consideration for the Eden Tract was $2,000, which plaintiff assumed or paid over and above his interest in the Collins Tract. Under that state of facts the measure of plaintiff’s damages was the value of his interest in the Collins Tract. Under defendants’ theory the owner of the Eden Tract received the benefit of the Collins Tract. Under defendants’ theory the true measure of damages was the difference in the market value of the plaintiff’s interest in the Collins Tract and the interest which he received in the Eden Tract. There was evidence of the value of the plaintiff’s interest in the Collins Tract and the value of the interest in the Eden Tract which plaintiff received: Scott v. Wallace et al., 102 Or. 22, 25 (201 Pac. 542); Parks v. Smith, 95 Or. 300, 304 (186 Pac. 552, 554); Ward v. Jenson, 87 Or. 314, 317 (170 Pac. 538); Salisbury v. Goddard, 79 Or. 593, 600 (156 Pac. 261). The two other instructions complained of are the instructions which substantially follow the allegations of the complaint regarding the right to recover and the one respecting punitive damages. The former instruction was properly given. The latter was harmless viewed from the result. It would be of no benefit to discuss it for it is clear no punitive damages were allowed. *23 Defendants contend that they were not agents of plaintiff, charged him no commission, and were under no obligation to protect his interests. But there was evidence to the effect that defendant Boss was representing plaintiff in the exchange, knew that plaintiff was relying implicitly on the representations made by and judgment of Boss as to the value of the Eden Tract. Defendants were not obliged to reveal their confidential relations with their principal. But when they pretended to communicate the instructions as to price and terms from their principal they should have spoken the truth. They cannot escape liability for the deceit practiced upon plaintiff inducing him to make the change because they were not bound to disclose such confidential relations. Defendants should not be permitted to perpetrate a fraud by falsely pretending to reveal the terms of their employer. If they speak about that relation they should tell the truth. It is only fair to defendants to say that Boss denied the material statements of plaintiff. The credibility of the witnesses and the weight of the evidence is determined by the jury. The judgment is affirmed. Affirmed. Burnett, C. J., and McBride and Band, JJ., concur.