This is an action to recover damages on account of alleged frаudulent representations made by defendants relative to two tracts of timbеr land which they exchanged for property owned by plaintiff! On November 15, 1922, the Mоrgan Razor Works, a corporation, entered into a written contract with defendants to exchange certain goods, wares and merchandise for two tracts of timber land, one located in Lane County and the other in Douglаs County. The contract relative to the tract in Douglas County recited that thеre were “six million feet of good merchantable timber, more or less.” As to the tract in Lane County it was covenanted that it contained “four million feet, mоre or less, of good merchantable timber.” When this agreement was exeсuted, and for some time prior thereto, the plaintiff was the owner of all of the stock in the Morgan Razor Works and it appears from the undisputed testimоny that the latter company was acting as agent *361 for the plaintiff in this transaction. It was provided that the deed of conveyance to be executed by defendants was to be delivered to the Morgan Razor Works or its assigns. Pursuant to this contract, defendants, on November 27, 1922, executed and delivered the deed to the plaintiff, Columbia River Door Company. In this conveyance the timbеr was described in the exact language set forth in the contract. Plaintiff allеges that the representations relative to the amount of timber on thesе two tracts were false and fraudulent in that there were only 3,335,000 feet of timber оn the Douglas County tract and 1,130,000 feet of timber on the Lane County tract. The issue оf fraud was submitted to a jury and a verdict was rendered as follows: “We, the members оf the jury, duly impaneled and sworn to try the above entitled cause find the defendants not guilty of any false representation, and our verdict is for defendants.” From thе judgment entered thereon the plaintiff appeals asserting that the spеcial finding of fact as made by the jury, that the defendants were not guilty of any false representation, is contrary to the undisputed testimony.
1, 2. It affirmatively appears from the record that the verdict is controlled by the special finding оf fact: Section 155, Or. L.;
Palmer
v.
Portland Railway, Light & Power Co.,
3-6. Whеther plaintiff was induced to exchange its property by reason of these false representations and whether it sustained damage as a result thereof are questions of fact for the jury to determine. If defendants’ contention be true that plaintiff was not damaged in this exchange of property, even though false representations were made, that, of course, would prеclude a recovery by the plaintiff. Evidence tending to show that defendants did not understand that they were representing the amount of timber specified in the contract and deed would be inadmissible under the issues as made by the pleadings. The terms of a written instrument cannot thus be altered or varied. The court, however, should be liberal in admitting testimony showing the facts, and circumstances surrounding this transaction, as the -jury must determine the issue of fraud.
Since the verdict is contrary to the court’s instructions and the undisputed testimony, it follows that the judgment entered thereon is reversed and the cause remanded for a new trial.
Reversed.