Boord v. Kaylor

McBRIDE, J. There is an objection that the complaint does not state facts sufficient to constitute a cause of action, and for this reason we have given the substance of the pleadings more fully than would otherwise have been required. There was no demurrer, and this being the case, the court after verdict will be slow to hold that there was no issue to be tried, if, taking the complaint by its four corners, it can reasonably be construed to state an issue, even though the statement may be indefinite. 1. In actions of this character the complaint must show: (1) That the representations were false; (2) that the defendant either knew them to be false or made them recklessly as of his own knowledge, without knowing whether they were true or false; (3) that he so made them, intending that the party to whom they were made should act upon them; (4) that the party to whom they were made accepted them as true, and acted upon them to his damage: Lindstrom v. National Life Ins. Co., 84 Or. 588 (165 Pac. 675), and cases there cited. 2, 3. As to the first requisite, it appears from a laborious analysis of the whole complaint that the representations were false; that Miller, whose relinquishment plaintiff was buying, did not have a valid filing, but that the California and Oregon Land Company had a filing which was prior in time and superior in right to that of Miller, so that the latter’s [374] relinquishment was worthless to plaintiff and gave him no rights whatever to a valid filing on the land. Concerning the second requirement, it appears from the complaint that the filings were a matter of record in the land office at Bosehurg and that an inspection of those records would have disclosed the fact that the California and Oregon Land Company had a filing upon the land covered by Miller’s filing, and that a contest of that filing was pending on appeal before the G-eneral Land Office in Washington ; so that when defendant assured plaintiff that he had investigated Miller’s filing at the Boseburg land office and that a relinquishment from Miller and a filing by plaintiff would give him a preference right to the land, he either stated that which he knew to be false, or recklessly made a statement which was false in fact. That he intended his representations to be acted upon sufficiently appears from the allegation that he informed plaintiff that it would be unnecessary for plaintiff to go to the land office to look up the records, because he had himself made an investigation regarding them which showed that the parties claiming under the filings (Miller’s filing being one of those referred to) had a good, subsisting right thereto. That plaintiff acted upon these representations and parted with his money on the strength of them, is sufficiently alleged. Therefore, although the complaint is far from being a specimen of artistic pleading, it does in an indefinite way embody those requisites which courts have held necessary in an action of this character, and in the absence of a demurrer it is sufficient to uphold a verdict. 4. Much of the time of the court was taken up with the question as to who received the money paid by plaintiff for the relinquishment, which was in fact [375] an Immaterial matter, except as it might tend to show the relations of the parties. If plaintiff was induced hy the false representations of defendant to buy a worthless relinquishment, it does not make a particle of difference whether he paid the money therefor to Beatty, as defendant’s agent, to Beatty individually, or to Miller. Nor is it material whether or not the defendant had the benefit of the money. The wrong committed did not consist in making misrepresentations for defendant’s benefit, but in making false representations with intent to induce plaintiff to part with Ms money to some person; whether that person was defendant or Beatty, is a matter of no consequence. If I lead a blind man into an open well, my tort is no less because the well belongs to somebody else. “"While in a majority of cases defendant has been a gainer by reason of Ms fraud, it is not essential to his liability that he should obtain any benefit or advantage from the transaction into which he has led plaintiff”: 20 Cyc. 43, and cases there cited. While there was some testimony from which the jury might well have inferred that defendant and Beatty were acting in concert, such proof was not absolutely necessary to a recovery, and a discussion of the question of the admissibility of evidence of Beatty’s declarations is unnecessary. There is no evidence that he made any statement to plaintiff as to the validity of the relinquishments or did anything to induce plaintiff to purchase, beyond showing him the land. 5. Several objections were saved by defendant to the rulings of the court on the admission of letters and communications from the General Land Office, which objections we deem not well taken. There is [376] one objection, however, which we think was well taken, and by reason of which we are reluctantly compelled to send the cause back for another trial. On cross-examination the defendant denied that he caused the advertisement herein quoted to be published or that he knew anything about it, and claimed that it was prepared and published by Beatty. He also claimed that he had not been engaged in the real estate business except to the extent of buying and selling land on his own account, and that he did not advertise any homesteads for sale in 1916. The tenor of his testimony was to the effect that he was not engaged in or familiar with the business of buying and selling homestead relinquishments, and that what he did in the matter of the instant contention was out of courtesy to Beatty. Counsel for plaintiff then asked him if he remembered the case of Julia Cline v. L. R. Kaylor mid J. W. Boyer brought in Multnomah County, wherein the complaint alleged that “L. B. Kaylor on or about the first day of September, 1916, caused to be inserted,” etc., reciting an advertisement similar to the one in the case at bar, and stated that he wished to offer it for the purpose of impeaching the witness, to show to the jury that in other instances defendant had caused relinquishment advertisements to be put in the papers, and to show that defendant had been engaged in that business. Counsel for plaintiff then offered the entire judgment-roll in that case, which was one brought for damages upon a transaction similar to this and in which there was a verdict with judgment against both defendants. The judgment-roll was admitted over the objection of counsel for defendant. The question asked the witness, as to whether he had sold other relinquishments in 1916 was collateral or at least only remotely rele [377] vant to the main issue, and while counsel had a right to ask it, and perhaps in view of the previous testimony of defendant on direct examination had a right to show by proper testimony that he had in fact sold other relinquishments in 1916, the judgment-roll in Kline v. Kaylor was inadmissible for that or any other purpose, being res inter alios acta, and as to persons not parties to the record being no evidence of any fact involved in the present controversy. Its introduction was highly prejudicial to the defendant. The statement of defendant that he had advertised no relinquishments in 1916 was drawn out on cross-examination and had little relevancy to the controversy as to whether or not he had made false representations to the plaintiff in respect to the instant transaction. The introduction of the judgment-roll in the Cline case simply amounted to an attempt to show that because a jury had found that he made false representations to Mrs. Cline, it was therefore probable that he had been guilty of like representations in the present instance. It is true that counsel for plaintiff ostensibly tendered it for another purpose, but as already shown, the avowed purpose was to impeach the testimony of the witness upon a collateral matter, which the law does not usually encourage. The objections to the instructions of the court are without merit, but for the error in admitting in evidence the judgment-roll in the case of Cline v. Kaylor we are compelled to reverse this case, which will be remanded to the Circuit Court with directions to grant a new trial. Reversed and Remanded. Burnett, C. J., and Johns and Harris, JJ., concur.