Graham v. Shay, 121 P. 413

Graham v. Shay

121 P. 413 | Or. | 1912

Mr. Justice McBride

delivered the opinion of the court.

1. The representations as to the character of the land and the amount of timber thereon are admitted, and the fact that they were untrue is fully established by the evidence. If they were willfully false or made recklessly without any knowledge as .to whether they were true or false, defendant cannot shield himself behind his guaranty, which would simply constitute a repetition of the falsehood.

2. The testimony will be examined, therefore, with a view of ascertaining the good or bad faith of defendant in making the representations which plaintiff claims were the cause of his making the purchase. Plaintiff’s testimony is positive to the effect that defendant told him he had been over every foot of the land, and knew its character, and that it was as he represented it. Bertroche testifies that defendant told him that he knew all about that country; that he had been there a number of times; that he (witness) never represented to defendant that the land had 5,000,000 or 6,000,000 feet of timber on it; that he did not represent anything to defendant in regard to the timber, but that defendant did all the representing himself, said he knew all about it. Mrs. Bertroche testifies that she heard defendant tell her husband that he had been all over this land, and knew what it was like.

*139Defendant testifies that he told plaintiff that he had never been nearer than within six miles of the land, and that his estimate of its character was derived from other parties. Mr. Heilman, who occupied the room adjoining that of defendant, testified that he heard one conversation in which defendant stated to plaintiff that he had never been on the land, but that he had been to see a Mr. Slinger, who had informed him that there were undoubtedly 5,000,000 or 6,000,000 feet of timber on the claim. Mr. Pulfer, another witness, testified that he overheard a conversation between pláintiff and defendant to this effect: Graham said to defendant that he had been up there and had seen that land, and that there was no timber on it. Defendant asked, “What land?” and Graham said, “The land I bought from Bertroche.”

Shay said:

“I didn’t know what was on the land. I sold that land to you, and gave you six months’ time to look at it, and you never have looked at it, and I am not to blame for it.”

Graham said:

“I don’t blame you, but somebody is responsible for selling me something that does not exist, and I want to find out where Mr. Bertroche lives.”

Shay further remarked:

“I never saw the land. I sold it to you and gave you six months to go and look at the land.”

And Graham said:

“I don’t blame you for it, Mr. Shay.”

Defendant did not produce as witnesses any of the persons from whom he claimed to have derived his information as to the character of the land or account for their absence. Colton, a timber cruiser, testified as to the character of the land, and from his testimony it appears that it is situated in an old burn; that it is rocky, precipitous, destitute of timber, and worthless for any purpose. It is clear that by reason of defendant’s repre*140sentations as to its character plaintiff was induced to part with $1,600, and has received nothing in return. It is also clear that defendant negotiated the purchase in his own name, and paid for it with his own money, with the intention of disposing of it to plaintiff at an advanced price. The fact that he did not ask Bertroche for an estimate of the timber, and that he purchased for a much less sum than other persons in the vicinity were asking for their timber claims, are circumstances tending to show that he knew or had reason to believe that there was something wrong about the land, and his statement to Mr. and Mrs. Bertroche that he had been there and knew all about it, if true, tends to prove that his misrepresentations to plaintiff were deliberate. It is claimed by defendant that he told plaintiff that he had never seen the land and only knew its character by report from others, but this is denied by plaintiff, and, as before stated, this denial is strengthened by defendant’s statement to Mr. and Mrs. Bertroche that he had been on the land and knew all about it, and by his failure to produce in court as witnesses the persons from whom he claimed that he had derived his information. The testimony is contradictory on this point, and, as we have not the opportunity enjoyed by the learned circuit judge of seeing the witnesses and observing their demeanor on the stand, we are inclined to adopt his view of the evidence, not only on that account, but because we -are convinced from a perusal of it. that it is more probable and consistent with what naturally would occur under the circumstances. It is true that Heilman’s testimony as to one conversation tends in a measure to corroborate defendant’s statement, but the witness was only a chance listener, and nearly two years had elapsed between the date of the alleged conversation and the hearing in court, and the facts detailed are denied by plaintiff who was putting his money into the property, and therefore *141interested in noting and remembering just what statements were made. Besides this, such a representation would be contrary to the fact if defendant’s statement to Bertroche and wife that he had been on the land' and knew all about it was the truth, as it probably was. We are convinced that defendant made the statements attributed to him in the complaint and that he either knew they were false when made or that he made them recklessly, without caring whether they were true or false, and that they were made for the purpose of inducing and did induce plaintiff to buy the land. This being so, he ought, as a matter of good morals, as well as law, to be compelled to make good to plaintiff the loss which he has occasioned.

The decree is affirmed. Affirmed.