20 Or. 257 | Or. | 1891
— It is contended on behalf of plaintiff that the answer of defendant only alleges a parol agreement to con
It is said to be well settled that when a contract is consummated by which an injury is done, whatever fraudulent representations may have been employed by a party to the contract as a means of inducing it to be made, cannot be excluded by invoking the aid of the statute. (Cook v. Churchman, 104 Ind. 141, 3 N. E. Rep. 759) Day v. Lown, 51 Iowa, 364.) The gravamen of the charge in the answer is that defendant has been deceived by means of the fraud of plaintiff to his hurt. It is true if plaintiff had only made a parol agreement to secure or convey these logging roads to defendant, and had refused to comply with it, however great the moral wrong may have been, the law could afford him no relief, because of the statute of frauds; but where, as in this case, the representations are made concerning some collateral matter, not ordinarily to be included in the deed, but so materially connected with the subject matter of the contract as to be one of the controlling influences operating to induce the vendee to make the contract, and without which he would not have made it, although such representations may be in reference to a matter within the statute of frauds, the vendor will be liable for damages to his vendee.
This brings us to the evidence. Plaintiff being the owner
This being a suit to enforce the payment of the note and mortgage given for the balance due on the land, defendant may recoup the damages resulting to him from plaintiff’s fraud. (Whitney v. Allaire, 4 Denio, 554; Chandler v. Childs, 42 Mich. 128, 3 N. W. Rep. 297.) The court below seems to have adopted as the measure of damages the sum which defendant was obliged to pay lion ell for the right to cross his land. There is no suggestion but what this payment was made in good faith and is the reasonable value of such right. We think the rule adopted by the court below was as favorable to plaintiff as he could ask. (Whitney v. Allaire, 1 Comstock, 305.)
There is yet one question remaining. From the evidence it appears that four or five days before the deed from plaintiff to defendant was executed, the parties entered into a written contract for the sale and purchase of this land in which no mention is made of the use of the roads across Honell’s land, and it is argued that reducing the agreement to writing precludes recurrence to all representations. It is true, as said by Sugden on Vendors, 129, reducing an agreement to writing is, in most cases, an argument against fraud. But it is only an argument, and very far from a conclusive one. That a written agreement can be relieved against on account
Decree of court below affirmed.