Rumbaugh v. Settlemeier

BENSON, J. 1. The . complaint contains two distinct causes of suit, of which one is against the partnership of Settlemeier and Eiggs, in relation to the purchase of the Fairbanks lands, and the other against Eiggs alone, in connection with the purchase of 53 acres of his orchard land on Three Mile Creek. It is alleged that plaintiff assigned her interest in the Fairbanks lands to Eiggs as a part of the purchase price in the latter transaction, and there is not a word in the pleading which connects Settlemeier with this contract in any manner. Under such a state of facts the plaintiff could not, in any event, have a cause of suit against the partnership, unless she could first prevail in a suit to rescind the contract in connection with which she had assigned the contracts for the Fairbanks land. We are not now called upon to say what her rights might be under such circumstances; but it is clear that, [108] as the matter now appears, the demurrer of the defendant Settlemeier should have been sustained, and such an order will be entered here. With this, we dismiss from consideration all matters connected with the alleged fraud in the negotiations for the Fairbanks lands. We think as to the later transaction with Riggs the complaint does state a cause of suit and, as a sequence, the demurrer of Riggs and Childers was properly overruled. 2, 3. This brings us to an investigation of the second cause of suit upon the merits. It may at first be remarked that the allegations as to the value of the land and the prospective value of the future crops of fruit could be, at the most, expressions of opinion and speculation as to matters necessarily dependent to some extent upon future weather and market conditions, and therefore not actionable. It may also be remarked that these alleged fraudulent misrepresentations are not established by a preponderance of the evidence. The allegations as to the number of fruit trees of each variety are in a different category, since, if supported by the evidence, they constitute a misrepresentation of an existing and pertinent fact. The evidence is conflicting in regard to what was said by Riggs regarding the number of each kind of trees. Plaintiff’s testimony, which is corroborated by her daughter, is to the effect that he told her there were 1,000 cherry trees, 1,000 apricot trees and 2,000 peach trees. Riggs says that he told her that he did not know the exact number of each, that he had never counted them, but that there were about 8 acres of cherries, a little over 20 acres of peaches and about 10 acres of apricots. He further testifies that he pointed out to her where the line would run through the [109] orchard dividing the portion to be purchased by plaintiff from the 50 acres to be retained by him, and that he told her he thought he had about 1,000 cherry trees in his orchard, and that probably half of them would be found in her part of it. In this he is corroborated by his wife who testifies that she heard Riggs tell plaintiff that the entire orchard contained about 1,000 cherry trees. Plaintiff spent three days on the premises and inspected the orchard before purchasing. She also testifies that prior to entering into the contract she counted eight rows of the cherry trees, evidently as a basis for computation, and also counted the peach trees. She also testifies that she had definitely determined to rescind the contract before she learned the true number of trees. After a careful consideration of all the evidence we think the trial court made no mistake in deciding that plaintiff had failed to establish her cause of suit by a preponderance of the evidence. The decree is therefore affirmed. Affirmed. McBride, C. J., Bean and Burnett, JJ., concur.