delivered the opinion of the court:
The evidence clearly shows that the conduct of Hughes was fraudulent and wholly defenseless.
Cоmplaint is made of the refusal of the court to give the fifth instruction offered by appellаnt, which was to the effect that before a party can recover for false representations it must appear from the evidence that the alleged false representations were made regarding something which had already transpired or was then alleged to exist, and that no statement of one’s opinion as to what will or will not happen or exist in the future can affect a contract or render it void. It is insisted that appellant was еntitled to have this instruction given for the purpose of limiting certain testimony to • the effect thаt Hughes represented the soil to be so productive as to produce twenty-five thousаnd plants per year, etc. The instruction had no application to the case, for the reason that the alleged misrepresentation was not as to the character of the soil, but the false representation was as to the amount which Lockington was to рay for the land, and which was the misrepresentation upon which the action was based. This representation was made regarding a material fact which had existed, and was not as tо the something which was to take place in the future, nor was it the expression of a merе opinion.
Complaint is also made of the modification by the court of the fourth instruction offered and given on behalf of appellant. This instruction was to the effect that the law presumes that all men are fair and honest and that their dealings are in good faith and without intent to cheat and defraud others, and where a transaction is called in question and is equally capable of two constructions, one that is fair and honest and the other that is dishonest, the law is that the fair and honest construction must prevail. The instruction was modified by the court by the addition of the words, “unless proven by the preponderance of the evidence to be otherwise.” The instruction as originally submitted stated a correct proposition of law, аnd it would not have been error for the court to have given it as offered, but the modification did not render it erroneous or misleading. In other words, the additional language did not materially change the meaning of the instruction.
I't is also insisted by appellant that before appellee could recover he must have proved three propositions: First, the misreprеsentation of a material past or existing fact by the defendant with the intent and for the purpose that the plaintiff should act upon it; second, that plaintiff did act and rely upon such stаtement; third, that he sustained legal damages in consequence of such action; and assuming that the testimony establishes the first two of these propositions, yet there is a total want of. proof that appellee suffered pecuniary loss, for the reason that Scovill, bеing confessedly a party to the fraud, could not enforce payment of the notes, notwithstanding he appeared to have obtained a decree of foreclosurе for the whole amount of the fraudulent as well as the actual consideration. This contention is not sustained by the proof. While it is true that Scovill could not have enforced the pаyment of the notes on the decree of foreclosure if appellee had taken the proper steps and could have proven the facts, there is evidence tending .to prove all three of the propositions above stated. Hughes, in the first plaсe, represented to Loclcington that Scovill wanted $1000 for his property. This statement wаs false, and Hughes knew it to be false. Lockington had confidence in Hughes, and, relying upon the stаtement as made, purchased the property, paying $500 to Scovill, $150 of which he borrowed from Hughes, and he gave Scovill a mortgage for $500 balance of the purchase priсe. The amount borrowed from Hughes was secured by a mortgage given by Lockington on his horse аnd wagon. After Lockington’s failure to pay the mortgages they were both foreclosed and the horse and wagon sold, and thus lost to him. He was also put to the expense of defending the foreclosure case in order to protect his rights. All of these caused him a peсuniary loss sufficient to sustain his claim for damages.
We find no reversible error, and the judgment will be affirmed.
T . . ~ , Judgment affirmed.