56 F. 203 | 8th Cir. | 1893
after stating the case as above, delivered the opinion of ihe court.
It is insisted, among other things, that the circuit court ei*red in refusing to instruct the jury to return a verdict in favor of the plain tiff in error, on the ground that he was not shown to have been guilty of any fraud or deceit. We are of the opinion that this position is untenable.
There was evidence which Cully warranted the finding that Keator & Son had heen induced by St. John to make ihe purchase of the pine lands in question, by means of the options, and by means of estimates and representations as to the amount of pine timber growing on the lands, which were at least believed to he untrue, even if they were not known to he so. And we also think that there was proof of some facts and circumstances from which a jury might legitimately infer that Glaspie, the plaintiff in error, had acted in concert with St. John, and had knowingly aided and abetted him in said scheme. In this class of cases, direct proof of a fraudulent intent or a fraudulent conspiracy is not to be expected, because such proof is rarely obtainable. Fraud is generally established hv circumstances, and it very frequently happens, in cases like the one in hand, that slight circumstances will warrant important inferences. It was shown in the present case that Glaspie gave to St. John certain written options to purchase the pine lands in question at prices which were greatly in excess of their value, and that at the time of giving such options he agreed to pay hack to St. John about ?>0 per cent, of the purchase price, if he sold the lands at the sums specified in the options. It is evident, we think, that Glaspie must have known that the lands could not be sold at the figures mentioned in the options to any one who wa.s correctly informed of ihe approximate value of the lands, and
The view7s last expressed will also serve to dispose of some of the exceptions that were taken by the plaintiff in error to the admission of testimony; for, if there was evidence sufficient to show that Glaspie and St. John had acted in collusion, then it was competent to prove whatever either one of them may have said or done in furtherance of the objects of the conspiracy. It .was competent to .show the correspondence and the telegrams which had passed be- ■ tween Keator & Son and St. John relative to the sale of the lands; it was competent to show the confidential relations that had previously existed between St. John and Keator & Son, and it was also competent to show that. St. John had carefully refrained from indorsing his portion of the land notes when he disposed of them to the First National Bank of Stillwater. All of this evidence had .a.direct tendency to show the various steps that St. John had taken
Several other errors in the admission of testimony have been assigned, which upon examination prove to be either immaterial, or not well founded. We shall only notice two of the assignments last referred to, and the first of these is the error said to have been committed in admitting the “scale bill.”
On the trial of the case one of the plaintiffs testified that during the winter of 1886 and 1887, after the purchase of the pine lauds by Keator & Son, some timber was cut on three sections of the land by William Gowan, under a contract with the J. S. Keator Lumber Company. The witness produced the contract with Gowan under which the timber was cut, and he also produced a scale hill of the timber which he stated was the original scale bill of the surveyor general. The bill of exceptions thereafter recites, in substance, that the plaintiff proved by other witnesses who went over the lands, and examined them, in the winter of 1888 and 188Í), the estimated amount of all the timber at that time standing on all of the lands which had been purchased by Keator & Hon, including the three sections on which the cutting had been done in the winter of 1886 and 1887. The bill of exceptions further recites that on ihe three sections last referred to the timber estimators found many logs lying that had not been removed, and many felled trees that had been ruined in cutting; but the total amount, of such, logs and ruined timber was not stated by them, or estimated Thereupon, and with a view of showing the amount of timber on the three sections aforesaid at the date of their purchase, the plaintiffs offered the survey- or general’s scale bill, above referred to, and also the Gowan contract, and the same were admitted. The scale bill is as follows:
Scale of logs cut by 'William Gowan for J. S. Keator Lumber Co., on Kettle River, winter of 1886 and ’87.
C. T. Goodrich, Scaler.
2,860,560 feet.
A. C. Hospes, Sur. GenT.
23,052 logs
Per Yates. Stillwater, Minn., March 3d, 1887.
Scaling, 0143.05.
7,816 logs.
14,867 “
1,769 “
23,952
930,300
1,665,299
264,960
2,860,500
18-22
12-16
2 lengths.
The specific objections made to the scale bill (and we can consider no others) are as follows: First, that if does not state at whose request the logs were scaled; second, that it does not mention any scale mark; third, that it does not state when the scale
The second assignment which deserves notice has reference to the action of the lower court in admitting a certain memorandum book showing the estimated amount of timber standing on some of the pine lands in question in the winter of 1888 and 1889, when they were examined. The bill of exceptions shows that two expert timber estimators went over the lands together for the purpose of estimating with the eye the amount of lumber that they would produce. One of these men gave his special attention to the number of trees; the other, to the size of the trees, and the amount of lumber they would be likely to yield. At the conclusion of each day’s labor they conferred together, and made a memorandum in two books of the amount of lum-
We remark, first, with reference to the memorandum, (hat it was merely a memorandum of an opinion formed by the timber estimators of the amount of lumber that the land would yield. It was not a record of actual measurements, or of other matters of fact, but simply showed the result of observations made with the eye, in which result both men had concurred on the day the visual survey was made. We are of the opinion that under such circumstances either of the timber estimators might properly refer to the book for the purpose of refreshing his memory as to the oninion then formed, and to enable him to testify thereto, and that, in connection with his testimony, the book itself was properly admissible. But, even if we are wrong in this view, yet it appears to us that the admission of the book was in no wise prejudicial to the plaintiff in error. The witness who identified it had already given evidence as to its contents, and what it showed, which was not objected to. It had appeared in the course of Ms examination before fbe book was offered that it contained an entry showing that the total timber on Iveator’s land was 8,692,000 feet, and the book, when offered, simply confirmed (hat statement, and liad no tendency to show any further fact. It is suggested that the book contained estimates with reference to timber on some lands other than those which the timber estimators had examined. But as this fact was not suggested to the circuit court, and as the book was not objected to on that ground, we can attach no importance to that suggestion. No error was committed in admitting the book, which would justify a reversal.
We have next to notice some exceptions which were taken to the charge, and these may be divided into two classes, namely, those which relate to portions of the charge in which the trial court appears to have indulged in some general comments on certain features of the case and the testimony, and those exceptions which relate to other parts of the charge, that are sup
It is further contended that the circuit court erred in instructing the jury that the case in hand was not barred by a previous recovery in an action by Keator & Son against St. John. The merits of this contention can be best tested by a brief statement of the facts upon which the defense was based. Keator & Son first brought an action against St. John to recover damages for the same fraud and deceit that is complained of in the case at bar, and in such suit recovered a judgment for $5,000, which judgment has not been satisfied. In the course of the trial of the latter suit for fraud and deceit, Keator & Son discovered that St. John had received $18,000 from Grlaspie of the sum which they had paid for the pine lands. They thereupon brought an action against St. John for the latter sum, and recovered the amount sued for, with interest, which judgment has been paid. The last-mentioned action was brought and maintained solely upon the ground that St. John
We are of the opinion f hilt the circuit court properly directed the jury to disregard the plea of a former recovery, for the reason that Ihe cause of ad ion sued upon in the second suit against St. John was totally unlike the cause of action in ihe first sail,, and totally unlike the cause of action in the suit at bar. There might have been a recovery against St. John in the second ad ion even though no misrepresentations had been made by him as to ¡he quantity of timber that the pine lands would yield, and the evidence which was sufficient to warrant a recovery in the second suit was utterly insufficient to justify a verdict in the first action. Furthermore, the damages recoverable in ihe respective suits were essentially different. These considerations warrant the conclusion that the payment .of the second judgment against St. .John did not operate to satisfy the first judgment for fraud and deceit, as was practical!v held by Mr. Justice Miller in Keator v. St. John, 42 Fed. Rep. 585.
The verdict of ihe jury, in the first action brought aga'nst St. John is no evidence in this suit of ihe amount of damage which Keator <& Son sustained in consequence of the alleged fraud, and nothing short of a voluntary acceptance of the damages assessed by the first jury, can bar Keator & Boh of ¡heir right to recover as against Glaspie, the other joint tort feasor, the full amount of the damages which they may be able to establish in a suit brought against him. We think that the collection of the judgment recovered in the second suit against lit. John, founded, as that suit was, upon an entirely different «Hire of action, cannot he regarded as a, voluntary acceptance of the damages assessed in (he first action.
We have not hitherto noticed, but we have not overlooked, ihe contention that the court erred in overruling ihe oral demurrer to ihe complaint, which was made after the, jury was called and sworn, but before any testimony was heard. The demurrer seems to have been based on Ihe ground that the complaint was defective in not showing with sufficient certainty that any damage was sustained in consequence of the alleged deceit. The point is untenable. The complaint averred generally, in the concluding paragraph, that damages had been sustained in a certain sum, which was all that the pleader was required to aver. But even if the complaint had been defective, as supposed, it was merely
Finding no material error in the record, the judgment of the circuit court must be affirmed.