Southern Oregon Orchards Co. v. Bakke

McBRIDE, J. The evidence of defendant and Ms witnesses tended to show that he was a Swede just arrived in the locality of this tract from Canada and unacquainted with the land or with the people in that vicinity; that he visited the tract and walked over it once in company with plaintiff’s agent, who assured him that the tract was the choicest of all — 25 — land in that country, being “first bench land” especially adapted for fruit and worth $3,000, and that one orchard near there had brought its owner an average annual income of $791 an acre; that the agent assured Bakke that he, Anderson, was a Christian; and that, relying on these assurances, the defendant was induced to enter into the contract without further inspection. The evidence of defendant further tended to show that the land was not first class, but mostly of an indifferent character not calculated to produce large or profitable crops of fruit or berries; that nobody in that vicinity had reaped from similar land the enormous profit stated by Anderson; and that the land purchased by defendant was not at the time worth the sum he paid for it. The testimony adduced by defendant tended in some degree to show that the alleged defects in the land were not observable from a cursory inspection of the surface, but would become apparent only by boring or by actual experiment in the way of cultivation. It is proper to say that all of these alleged misrepresentations were contradicted by the plaintiff’s evidence, in fact so vigorously contradicted as to excite some surprise in the mind of the writer as to the verdict returned. But in this state the infallible jury is the sole judge of the value or effect of evidence, and where there is any evidence supporting a proposition, this court is not permitted by our Constitution to weigh it as against contradictory evidence. So we must assume for the purposes of this appeal that all of the evidence offered by defendant is true. It is not disputed that C. M. Anderson, plaintiff’s sales agent and manager, made the representations as testified by defendant. He was not called as a — 26 — witness, and defendant’s statements in that regard are nndenied. ÍThe jury might have been justified in assuming that an agent representing a corporation engaged in platting and selling tracts of land would have some knowledge of the character and productiveness of the soil in such tracts and that if he misrepresented them, he did it knowingly, or at least recklessly. The statement that another tract similar in character had produced an average annual income of $791 per acre was the statement of a fact or what the agent intended the purchaser to believe to be a fact, and the jury under the evidence was authorized to find that the statement was false and intended to deceive the prospective purchaser. By appealing to Bakke’s religious sense in assuring him that he, the agent, was a Christian the latter probably obtained a confidence which Bakke would not have reposed in one who, in the language of Justice Thater, was “merely a broad-chested man of sin.” When one puts on the “livery of Heaven” he ought to live strictly up to the character he assumes and not use it as a disguise to obtain the confidence of the ignorant and unsuspecting, both of which characteristics the jury with the defendant before it may justly have attributed to him. The fact that defendant walked over the land before concluding the purchase does not necessarily preclude him from recovering damages, where the defects were not readily discernible and where he was prevented from making a closer examination by reliance upon the false statements of the seller: Burke v. Hindman, 56 Or. 545 (109 Pac. 380); Larsen v. Lootens, 102 Or. 579 (194 Pac. 699, 203 Pac. 621). It was the province of the jury to judge whether or not the defendant acted reasonably, under the circumstances. — 27 — Error is predicated on the refusal of the court to permit the jury to view the premises. Such view is never permitted for the purpose of using it as substantive evidence, but only in order to enable the jury to understand the testimony actually adduced at the trial. The propriety of directing such a view is within the discretion of the court and we are not prepared to say that there was any abuse of discretion in this case. Error is predicated upon the giving by the court of the following instruction: “As I have told you, gentlemen, already, it is claimed that the evidence. tends to show in this case that these parties entered into a contract for the purchase of lands some years ago, and it is claimed that there is evidence tending to show that certain representations were made to the defendant by plaintiff’s agents, and that they were false and that the defendant relied upon these representations and was damaged. So it becomes necessary for the court to instruct you as to the law applicable to those facts. Of course, it is not for the court in any- way to intimate what the facts are — that is a matter especially for the jury to determine — but only to give you the law for your guidance, applying it to the facts as you may find them to be.” It is urged that the words, “it is claimed that the evidence tends to show” invade the province of the jury and are an intimation that the evidence in truth tends to show a certain state of facts; and that the words intended to mislead the jury. A perusal of the whole instruction negatives the construction placed upon it by the plaintiff. Another assignment of error is based upon the following instruction: “Now, in case you should find that under the rule of law as I shall give the same to you, that — 28 — the defendants were damaged in any amount, I instruct you that the rule of damages applicable would be that the damages would be the difference between what the defendant paid for the property and its fair market value at the time of entering into the contract. It would make no difference that he might later be able to sell the property for more than he paid for it.” This charge clearly states the law. It is further contended that the court erred in refusing to give the following instruction requested' by the plaintiff: “I instruct that the expression of an opinion is not a representation and does not amount to fraud, although false. So, if the defendant Alfred A. Bakke, the purchaser of the property, had an opportunity to examine the' real property and ascertain its value or the condition of the soil and no fiduciary relationship existed between the plaintiff and the defendant Alfred A. Bakke, the plaintiff’s representation as to the value of the property, if any it made, is but the expression of an opinion and not actionable, even though false and fraudulent.” This instruction is faulty in that it leaves out the element that even if the purchaser has the opportunity to examine the property, yet if by an artifice or misstatement of the seller he is induced to forego a thorough examination, he may still recover. So far .as the law 'is correctly stated by the request, it was given and even reiterated in the following instructions: “Now, with regard to the law as to representations: You will remember that it is claimed that a fraud was practiced upon defendant by plaintiff’s agents, and that he was induced to make this sale through and by means of fraud. Now, the rule of law in relation to this, on that subject the rule is that in order to amount to fraud a representation — 29 — as to value must be coupled with some untrue or misleading statement of fact used to reinforce the information, and not only so, but further that the person alleged to have been defrauded must have been thereby induced to forego further inquiry as to the worth of what he would acquire. “I further instruct you that general assertions or expressions of a seller in commendation of his land and bragging upon it, commonly called dealer’s talk, do not constitute any grounds for action of deceit or fraud. Such statements are generally [regarded] in the law as mere expressions of opinion upon which a purchaser cannot safely rely. “And I instruct you further that the purchaser of real property must use reasonable care for his own protection and should not rely blindly upon the statement made by the seller, and between parties dealing at arm’s length, where no fiduciary relation exists and no device or artifice is used to prevent an investigation, it is the general rule that the purchaser must make use of his knowledge and failing to do so, he cannot recover on the ground that he was misled, and neither is the purchaser nor the seller to be the guardian or protector of the other. “And that is simply stating the rule that under ordinary circumstances the law requires a person, and would require the defendant in this case, to exercise reasonable and ordinary care in the transaction, and with that rule I instruct you that the plaintiff would be liable for false representation causing the defendant to forego an investigation and which would mislead — which did mislead him, but requiring of him at the same time the exercise of reasonable care in closing the transaction of making a proper investigation and inspection for himself.” These instructions are not, as contended by plaintiff, mutually contradictory, but logically supplement each other and fully state the law. Error is predicated upon the action of the court in overruling plaintiff’s objection to certain testi — 30 — mony of defendant and Ms witnesses, but we fail to find snob objections tenable. On the whole we find that the court afforded plaintiff an exceedingly fair trial and ruled correctly upon every proposition of law. It was a very close case upon the facts, with barely enough testimony on behalf of defendant to enable him to get his defense to the jury, and the fact that the jury chose to believe defendant instead of the witnesses for the plaintiff was not the fault of the court in failing to rule correctly at the trial. There was some evidence to justify the verdict and it must therefore be acquiesced in. The judgment is affirmed. Affirmed. Burnett, C. J., and Harris and Rand, JJ., concur.