Johnson v. Meyers

JOHNS, J. The defendants claim that the verdict should be set aside on the ground that it is excessive, but there is testimony tending to support all of the material allegations of the complaint. The jury found for the plaintiff, and Article VII, Section 3, of the Constitution provides: “No fact tried by a jury shall be otherwise reexamined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict.” 1. Certain letters from the plaintiff to the defendants were introduced in evidence and it is contended that they were in the nature of self-serving declarations and prejudiced the jury. They were occasioned by the transaction and pertained to the execution and performance of the contract, and were admissible under the decision of this court in Lee v. Cooley, 13 Or. 434 (11 Pac.70), upon the theory that they should be treated as declarations or conversation between the parties. 2. It is also contended that “damages which were within the contemplation of the parties or which were [184] the necessary or natural consequences of the fraud only can be recovered.” That is the law and as we construe the record it is the theory upon which the case was tried and upon which the court instructed the jury. The defendants maintain that “the damages recovered must be limited to the actual loss sustained by reason of the fraud” and that “prospective and uncertain profits cannot be recovered.” That is the rule laid down in Smith v. Bolles, 132 U. S. 125 (33 L. Ed. 279, 10 Sup. Ct. Rep. 39), where the court says: “If the jury believed from the evidence that the defendant was guilty of the fraudulent and false representations alleged, and that the purchase of stock had been made in reliance thereon, then the defendant was liable to respond in such damages as naturally and proximately resulted from the fraud. He was bound to make good the loss sustained, such as the moneys the plaintiff had paid out and interest, and any other outlay legitimately attributable to defendant’s fraudulent conduct; but this liability did not include the expected fruits of an unrealized speculation. ’ ’ And Rockefeller v. Merritt, 40 U. S. App. 666 (76 Fed. 909, 22 C. C. A. 608), lays down the rule: ‘ ‘ The true measure of the damages suffered by one who is fraudulently induced to make a contract of sale, purchase, or exchange of property is the difference between the actual value of that which he parts with and the actual value of that which he receives under the contract. It is the loss which he has sustained, and not the profits which he might have made by the transaction. It excludes all speculation, and is limited to compensation.” This is an action of fraud and deceit based upon alleged false and fraudulent representations of the defendánts which were made to the plaintiff at the [185] time of the execution of the contract, by reason of which he was induced to and did execute the contract, and upon which he relied. Among other things, the plaintiff claims that he would have made a profit of $848 if the conditions had been as represented by the defendants, and upon that question the court instructed the jury as follows: “If you find that if such representations have not been made, he would have gone on with this contract with a profit, you should award to him such sum as in your judgment would represent his profit on his contract.” 3, 4. Under the authorities above quoted, we think this was error, but the record does not show that any exception was taken to this instruction. While a liberal construction should be placed upon exceptions which are taken in open court at a trial, the record shows that the only exceptions taken to the charge were to that portion thereof “relating to the right of the plaintiff to reply upon representations as made,” to “the effect of the failure of the plaintiff to make his own investigations,” to “the right to claim damages under the contract where the wood was mingled” and also “with reference to representations concerning the roads upon the tracts of land. ” Under the most liberal view, neither of these exceptions can be construed as applying to “profit on his contract.” The record shows also that all of the plaintiff’s testimony as to profit on his contract was admitted without objection. It is true that the defendants moved to. strike out his testimony “about his estimate as to what it would have cost had the conditions been such as he represented them, because he has testified it was simply his estimate of what it would have cost to haul to the roadside. The original amount of a dollar and [186] a quarter a cord was what he was figuring on on the original estimate.” The defendants again moved “to strike that testimony all out in regard to his estimate as to what it would have cost to haul wood had the conditions- been such as represented.” Upon these motions the court made this ruling: “The testimony will be confined to the haul from the woods and if that testimony did not apply to that it will be stricken out.” The plaintiff then testified as follows: “One dollar per cord is the amount from the woods on a gravel bottom. “Q. Just the same as for the roadside? “A. Yes.” No exception was taken to this ruling. We have carefully examined all of the defendants’ requested instructions which were refused, to which refusal exceptions were duly taken and allowed. But neither of them asked the court to charge the jury in substance or effect that “the damages recovered must be limited to the actual loss sustained by reason of the fraud” or that “prospective or uncertain profits cannot be recovered.” For such reason, that question is not properly before us. Some contention is made that the contract was modified; that it was not carried out by the plaintiff; that for such reason he is estopped to claim or assert that he was deceived or misled by false representations or that he relied thereon. 5. The evidence was that the plaintiff did haul all of the wood except about 67.5 cords; this would be a substantial compliance with the contract. There is also evidence indicating that the plaintiff negotiated with the defendant for the purchase of the remaining wood left in the timber and that they agreed upon the price. [187] 6. Under the contract all of that wood was to he hanled hy September 1, 1916. On August 12th the plaintiff wrote to the defendants, asking for an extension of thirty days in which to complete the contract; in response the defendants advised him that they “would grant him an extension of thirty days.” This did not amount to a new contract; it was merely an extension of time in which to perform the original agreement. The instructions were very exhaustive and fully presented every material issue under the pleadings. The important questions were of fact, upon which the jury found for the plaintiff. In so far as defendants’ requested instructions are legally correct they were embodied in the charge of the court, and outside of the instructions as to profit on the contract, to which no exception was taken, there was no error in the charge as given. After a careful examination of the record as presented, we are of the opinion that the judgment should he affirmed. Affirmed. McBride, C. J., and Bean and Bennett, JJ., concur.