Cobb v. Peters

136 P. 656 | Or. | 1913

Mr. Justice Eakin

delivered the opinion of the court.

1-3. Both plaintiffs and defendants have treated the action as one to recover damages for false representations. The attorneys and court tried the case on that theory, and we cannot consider any other on this appeal. The complaint fails to state facts sufficient to establish a liability against the defendants for false representations. In such a case it is necessary to plead that the representations were false, that the defendant knew them to be false, that they were made with intent to defraud, and that the parties seeking relief therefrom believed and relied upon such representations, and were misled, to their damage: Bailey v. Frazier, 62 Or. 142 (124 Pac. 643); Anderson v. Adams, 43 Or. 621 (74 Pac. 215); Martin v. Eagle Development Co., 41 Or. 448 (69 Pac. 216); Britt v. Marks, 20 Or. 223 (25 Pac. 636). There was no allegation that defendants knew the representations were false, nor that plaintiffs believed them to be true, or acted upon them, to their damage, which is fatal to plaintiffs’ cause of action based upon false representations. Plaintiffs have failed, both in the pleadings and in the proof, to make a case upon that theory. While there is testimony to show a want of consideration for the sale, yet that is not the cause of the action relied upon by plaintiffs. They must recover, if at all, upon the cause of action made by the pleadings, and therefore the judgment must be reversed.

á. One other question should be considered, as the case will be remanded for further proceedings. Defendants contend that the court committed error in admitting in evidence the transcript of the judgment-roll in the case of Dunn & Lott v. Roth et al., for the reason that the defendant J. Peters was not a party to the suit, and therefore not bound by the decree. Of course, he was not bound by it as to any interest he might have had in the land; but, as he had none, he could not have been a proper party to the suit. The complaint in that suit charged that there was a deed on record purporting to be executed by Dunn & Lott to Both, but that Dunn & Lott did not sign a deed, and that their names were forged thereto. Both was a party to the suit, and made default, thereby confessing the complaint. The decree to that effect is conclusive of the facts decreed as to Both and his grantees, if parties to the suit, and therefore Both’s deed to plaintiffs conveyed no title. The decree was competent evidence of the fact that Both had no title to the land when he conveyed it to plaintiff, and it is conclusive against the plaintiffs. There was no question of estoppel involved, and therefore no necessity to plead one. The decree was simply evidence of the failure of the title in the plaintiff.

The judgment of the lower court is reversed and the cause remanded for further proceedings.

Reversed.

Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.