Kabat v. Moore

85 P. 506 | Or. | 1906

Mr. Chief Justice Bean

delivered the opinion.

1. There was no error in overruling the motion to make the complaint more definite and certain. The names of the parties, if any, who assisted the defendant in running out the lines of the property shown to the plaintiff, were 'immaterial to the cause of action, and it was not necessary that they should be stated in the complaint.

2. The motion to make the reply more definite and certain and for a directed verdict, because it did not raise an issue on the averments of new matter in the answer, was likewise properly overruled. The statute (Section 77, B. & C. Comp.), as amended in 1903, provides that when an answer contains new matter constituting a defense or counterclaim, the plaintiff may reply to such new matter, denying generally or specifically each allegation thereof controverted by him: Laws 1903, p. 205. It may be doubted whether, under this statute, a reply merely denying each and every “material” allegation of the answer is a good denial, for a plaintiff ought not to assume to himself to determine what facts are material and thus render a conviction for perjury for a false verification difficult or impossible: 1 Enc. Pl. & Pr. 782; Montour v. Purdy, 11 Minn. 384 (83 Am. Dec. 88); Lewis v. Coulter, 10 Ohio St. 452.

3. The question, however, is not important here, because the new matter pleaded in .the answer merely negatives the averments of the complaint, and could have been shown under the denials. It does not admit the cause of action as alleged and seek to avoid its force and effect, nor set up a defense or a counterclaim thereto. All the facts alleged were embraced in the judicial inquiry as to the truth of the matter stated in the complaint, and went directly to disprove such facts. The substance of the affirmative matter is that defendant was employed by plaintiff to locate’him on a homestead claim; that in pursuance of such, employment he showed plaintiff the northeast quarter of section 34 and truthfully pointed out to him the corners and lines thereof; that defendant jnade an examination of the premises, and, being satisfied therewith, entered the same under the homestead laws, with full knowledge that he was filing upon the land included within the description. These averments constitute merely a denial of the fraud charged in the complaint, and no reply was required: Bliss, Code Plead. (3 ed.) § 330.

4. It is also contended that the court erred in overruling defendant’s motion for a nonsuit on the ground that plaintiff had not proven a case sufficient to be submitted to the jury. The argument is that the evidence does not show that plaintiff relied upon the statements and representations of the defendant as to the location of the land and the boundaries thereof, or that he was deceived thereby. There is no positive and direct evidence that plaintiff relied upon the statements and representations of the defendant, but such is the only reasonable inference that can be drawn from the testimony. Plaintiff was a cigar manufacturer at Roseburg, and unfamiliar with public lands. Desiring to enter 160 acres as a homestead, he applied to defendant, who was in the business of locating settlers upon government land, to ascertain and point out to him a vacant tract subject to entry under the homestead laws, for which service he agreed to pay the defendant $85. The defendant, in pursuance of this employment, took him out in the mountains some distance from Roseburg, showed him a tract of land which he represented to be the northeast quarter of section 34, from 15 to 18 acres of which was level and suitable for agricultural purposes; that defendant pointed out to the plaintiff what he represented to be the northeast corner of the tract and then stated that he would run out the east line, but, as the country was rough and the plaintiff was not very well, advised him to go by another route .to the supposed southeast corner and there await his arrival; and that defendant pretended to run the east line, and, .after a time, came to where the plaintiff was waiting for him, and said that the corner must be near that point. He was unable to find it, but said to the plaintiff that “We’ll make a comer,” and then proceeded to mark a laurel tree at the point where he said the corner was to be and to run out what he claimed to be the south line of the tract. The plaintiff, without making any further examination or inquiry as to the true lines, and relying upon the defendant’s statements in reference thereto, filed on the land, and thereafter proceeded to build a house and make other improvements thereon. He subsequently caused the land to be surveyed, and found that the true east line was 31 rods west of the line shown him by the defendant, and that his house and improvements were off the land filed on some 16 rods, and that none of the level land was on the claim. It is clear, from this testimony, if true — and for the purposes of this motion it must be so taken — that the plaintiff, in filing upon the claim and making his improvements, relied upon the statements of the defendant as to the location of the land and the boundaries thereof, and was thereby deceived and misled to his injury.

5. Considerable prominence is given in this connection to a statement in a letter written by one of plaintiff’s counsel to the defendant long after the facts constituting this cause of action had arisen, and in an attempt to adjust the matter, to the effect that plaintiff had had his land surveyed and found that “his house and improvements are not upon the land shown him, but upon a railroad section.” The intention of the writer of this letter is perfectly apparent, and his language can hardly be distorted into an admission that plaintiff did not, in fact, build his house or make his improvements upon the land shovu him by the defendant, but upon other and different land. But, if it be so construed, counsel who wrote the letter had no authority to bind his client by any such a statement, and at most it could amount to nothing more than an admission against interest, and its value was for the jury.

6. It is also claimed that the court erred in instructing the jury that, as it was alleged in the complaint that defendant was engaged in locating settlers upon vacant government land for hire, he was supposed to know the corners and boundaries of the land he solicited persons to locate upon and to understand his business "just as much as a physician, should his profession if he takes pay therefor.” The allegation of the complaint in reference to defendant’s being engaged in the business of locating persons on vacant government land for hire was stricken out and therefore, technically, the court was in error in saying that the complaint so stated. The fact, however, appeared from the evidence. He assumed to locate the plaintiff upon a tract of vacant land for which he was to receive and was paid $85, and he must, therefore, be presumed to understand his business and be responsible for the manner in which he discharged his obligation. There was no reversible error in the instruction as given, as applied to the facts of this ease, although some parts of it may be open to criticism as the statement of a general rule.

7. The defendant requested the court to instruct the jury:

"When one or more witnesses affirm the existence of fraud, and an equal number denies its existence and there is nothing to show that one is more creditable than the other, the fraud is not established, and if you find that state of facts from the evidence that has been adduced before you, plaintiff has failed to make out the better case, and your verdict should be for the defendant.”

As an academic statement of the law this instruction may be correct under some circumstances, but it is not pertinent in this ease. The existence of fraud here is not to be determined from the number of witnesses, but from the entire testimony and the surrounding circumstances. Where fraud is an issue, it is generally to be ascertained from all the testimony and such inferences as may be legitimately drawn from it: Williamson v. North Pac. Lum. Co., 42 Or. 153 (70 Pac. 387, 532). It is seldom that it can be established by the direct and positive testimony of witnesses. It is a question for the jury, who are the judges of the credibility of the fitnesses, the weight of their testimony, and the inferences to be drawn from the circumstances attending the particular transaction.

The judgment is affirmed. Aeeirmed.