Pole Stock Lumber Co. v. Oakdale Lumber Co.

Smith, J., delivered the opinion of the court. Appellant, plaintiff in the court below, executed and delivered to appellee, the defendant in the court below, a, quitclaim deed to timber on certain land; a part of the consideration therefor being two promissory notes. There remaining a balance due on these notes after certain payments had been made thereon, this suit was instituted to collect same. From a judgment in favor of appellee, this appeal is taken. One of the defenses relied upon by appellee is that it got nothing by its purchase, for the reason that the appellant had no title to the timber, and that it (appellee) was induced to make the purchase by reason of appellant having falsely and fraudulently, with the design to cheat and defraud appellee, represented to it that it had a good and valid title to the timber. The testimony of the secretary of appellee, who acted for it in making this purchase, on this point is as follows: “He (referr [22] ing to the agent of appellant, who represented it in making the sale) tendered ns a quitclaim deed, and I refused to accept it, and told him that the deed was not good; and he stated that it was the only kind of a deed he would give, and that the deed was good, and says: ‘Here are all the old deeds that the company has.’ He then turned the deed over to me for the twenty acres, which I didn’t get, and then he says: ‘These deeds are good, and we will stand behind them.’ It was on that representation that we paid him the money. . . . That is about all he said about it. He said: ‘These are the deeds the Pole Stock Lumber Company got, and we stand behind them.’ And then'he said, ‘You know the Pole Stock Lumber Company,’ and I did know them to be a good firm. I knew one of the parties interested personally at that time.” This evidence is wholly insufficient to support the plea, and at most tends only to prove, by parol, a warranty of title, as to which the written instrument must, of course, control. The court, therefore, erred in submitting this issue to the jury. Reversed and remanded,