Leach v. Helm

BELT, J. The complaint herein is far from being a model pleading, but,, in the absence of demurrer and after verdict, we believe it is not fatally defective. Every reasonable intendment is in its favor: Boord v. Kaylor, 100 Or. 366 (197 Pac. 296). Defendants claim that the complaint is insufficient in that it fails to allege that plaintiff relied upon the representations in reference to the location and identity of the land in question. It is alleged by plaintiff that defendant E. W. Helm agreed to locate him on the land, and pursuant thereto did actually point out its boundaries to him, and that he “paid defendants $250, and proceeded to make preparations to erect a house and other buildings on said premises.” We think the facts alleged in the complaint when considered in their entirety show a reliance upon the representations made to him, and are equivalent to the usual allegation in actions of this character that “plaintiff believed said representations to be true and relied thereon.” A close ques *411 tion is presented as to the sufficiency of the complaint in reference to the defendant Myra Helm. Plaintiff alleges, in substance, that E. W. Helm had a homestead relinquishment for sale which was owned by his codefendant, and that after selling the same the purchase price was paid to the defendants. A liberal construction of the pleading warrants the conclusion that the facts therein alleged show a relationship of principal and agent. If it is true that E. W. Helm was selling the land for Myra Helm, and that she accepted the proceeds of the sale, she is not in a position to question the existence of the agency. In Dillard v. Olalla Mining Co., 52 Or. 126 (94 Pac. 966, 96 Pac. 678), the well-established rule is announced: “A principal cannot accept the part of an agent’s acts inuring to his benefit, and in the same transaction reject that portion appearing to his injury. The burdens thereof must accompany the . benefits; and, whatever may be held in other jurisdictions, this rule in this state is held to be applicable to sales of realty as in other business dealings.” Defendants assign error in denying motions for nonsuit and directed verdict. This contention is wholly untenable. There was ample evidence to go to the jury in support of plaintiff’s theory of the case. In fact, defendant E. W. Helm admits that a mistake was made by him in pointing out the location and boundaries of the land to the, plaintiff, but claims it was an honest mistake and that plaintiff was negligent in not ascertaining the facts as to the identity of the land described in the homestead relinquishment purchased by him. We cannot say as a matter of law that plaintiff was guilty of negligence in relying on the repre *412 sentations that the land pointed out to him was that .on which he had filed as a homestead. E. W. Helm was engaged in the business of locating persons on government land, and the plaintiff, in the absence of notice to the contrary, had a right to rely upon his representations. The land on which plaintiff had filed was located on the top of a mountain, and was absolutely worthless for agricultural purposes, while that shown to him was comparatively good land, being situated near the famous Mt. Hood Loop Highway. The fact, if it be a fact, that defendant was honestly mistaken in the matter of locating plaintiff is immaterial. Defendant had reason to believe that his representations as to the land pointed out were being relied upon by plaintiff, and he was therefore obliged to speak correctly concerning the same: Jackman v. Northwestern Trust Co., 87 Or. 209.(170 Pac. 304). As stated in Cawston v. Sturgis, 29 Or. 331 (43 Pac. 656): “When a party undertakes to make representations concerning a matter that he is bargaining about with another, he must know what he represents to be true, if he knows that the other party is relying ppon his statements. He is held equally responsible whether he actually knew that the representations were false, or whether he negligently made representations without knowing whether they were true or false.” There is evidence that E. W. Helm was acting as agent for his sister Myra in the sale of this homestead relinquishment, and that the money thus obtained was paid to her. Defendants’ real defense is in the nature of accord and satisfaction. It is claimed that plaintiff, after discovering the fact that he had been located upon the wrong land, relin *413 quished his entry thereon, arid agreed to accept location on certain water power site land in full satisfaction and settlement of any claim against defendants arising out of the original transaction. There was no error in submitting the case to the jury as against both defendants. Error is predicated on the ruling of the court in allowing plaintiff’s motion to reopen his case in chief and permitting additional testimony as to certain statements that Myra Helm is alleged to have made at a previous trial. This was a matter discretionary with the trial court, and we see no abuse of its authority in that respect: State v. Isenhart, 32 Or. 170 (52 Pac. 569). Objection to the form of verdict rendered and the judgment entered thereon presents the interesting question as to whether there, can be an apportionment of punitive damages as between joint tort-feasors. In Chrudinsky v. Evans, 85 Or. 548 (167 Pac. 562), the court said: “It is well settled by the great weight of authority that in the absence of a statute authorizing an apportionment of damages among joint tort-feasors, the jurors have no right to divide them and assess a portion to each defendant thus concerned in the perpetration of a common wrong.” It is true that in the case last cited compensatory and not punitive damages were involved; but we believe that the rule therein announced correctly states the law as applicable to the question under consideration here: Washington Gas Light Co. v. Lansden, 172 U. S. 534, 553 (43 L. Ed. 543, 19 Sup. Ct. Rep. 296, see, also, Rose’s U. S. Notes); Young v. Aylesworth, 35 R. I. 259 (86 Atl. 555); Moore v. Duke, 84 Vt. 401 (80 Atl. 194); McCarthy v. *414 De Armit, 99 Pa. 63; Pardridge v. Brady, 7 Ill. App. 639; 38 Cyc. 493. In 2 Sutherland on Damages (4 ed.), Section 407, it is stated: “If a wrong is done by two or more persons jointly and all are sued together, if only one of them, or less than all, acted upon such motives as are condemned by the law and punished by exemplary damages, the motive of some will not be imputed to the others, and the liability of the latter will not extend beyond compensatory damages. In such a case the plaintiff has his election to proceed against any or all of the wrongdoers. By making them all defendants he waives his right to exemplary damages if •some of them are not subject thereto.” The court in Moore v. Duke, supra, says: “If more than one is made defendant, all must be shown to have been moved by a wanton desire to injure. Boutwell v. Marr, 71 Vt. 1 (42 Atl. 607, 76 Am. St. Rep. 746, 43 L. R. A. 803). The correct rule in a case like this is that the compensatory damages are indivisible. All are equally liable, without regard to degrees or shades of guilt. But, since exemplary damages are predicated upon the animus of the one against whom they are claimed, it may happen, when two or more are defendants, that some are liable for exemplary damages and others only for compensatory. Some may be acting in good faith, while others may be acting maliciously.. In such cases, while all are liable for the full amount of the actual injury which the plaintiff has suffered from the joint tort — are equally liable for compensatory damages — exemplary damages are to be assessed according to the guilt of the most innocent of the defendants. And if any of these was acting in good faith, and so not liable for punitive damages, none can be awarded in the suit.” While there is much authority to the contrary, Nelson v. Halvorson et al., 117 Minn. 255 (135 N. W. *415 818, Ann. Cas. 1913D, 104, and cases cited in note thereto), we hold that punitive damages uannot be apportioned between joint tort-feasors, and that error was committed in entering judgment against defendant E. W. Helm as to such damages. The finding of the jury relative to punitive damages as embodied in its verdict may well be rejected as surplusage; and as the record discloses the judgment that should have been entered by the trial court, we are authorized under Section 3c, Article VII, of' the Constitution to do that which ought to have been done, viz.: To enter judgment against both defendants for compensatory damages only. The judgment of the lower court is set aside and one entered here in favor of plaintiff and against defendants in the sum of $250. Modified and Affirmed.