181 F. 922 | 9th Cir. | 1910
The plaintiff in error was plaintiff in the court below, where by his complaint he sought to recover damages from the defendants in error, who were defendants there, resulting to him by reason of certain alleged false and fraudulent representations alleged to have been willfully and wantonly made by the defendants in a certain written instrument, which is set out at large in the complaint, and which is as follows:
“Know all men by these presents: That we, George C. Burford, and J. B. Caro & Company, of the town of Juneau, district of Alaska, for and in consideration of the sum of two thousand ($2,000.00) dollars, to us in hand paid, receipt whereof is hereby acknowledged, do hereby sell, transfer and assign unto J. W. Martin, of the town of
“One scow ‘Skagitt,’ her lines, gear, etc.; one scow ‘Volunteer,’ her lines, gear, anchor, etc.; one log float; seine boat, and seines; seines; sale barrels, tierces; salmon troughs; and one store building and site situated at Farragut Bay, Alaska, together with all things pertaining to the fishing outfit known as the ‘Arctic Fishing & Packing Company,’ except the launch ‘Tillicum,’ which said launch is hereby expressly reserved.
“And the said parties of the first part hereby covenant that they are the owners and entitled to sell the said one-third interest of all of the above-described property, which said property is known as the said ‘Arctic Fishing & Packing Company’ and set over the same to the said second party.
“In testimony whereof we have hereunto set our hands and seals this 28th day of August, 1905.
“George C. Bur ford. [Seal.]
“J. B. Caro & Co. [Seal.]
“By Chas. E. Hooker.
“J. B. Caro.
“Signed, sealed, and delivered in presence of:
“C. A. MacGregor.
“L. B. Francis.”
The complaint alleged, among other things, that the representation and covenant made by the defendants to the plaintiff to the effect that they then were the owners and entitled to sell the one-third interest in the store building and site situated at Farragut Bay were falsely and wantonly made in order to induce the plaintiff to make the payment of $2,000; that at no time did the defendants or either of them own that building or site, and that at no time were the defendants or either of them in the possession thereof or entitled to sell the building or site; that the representation and covenant as to their ownership of and right to sell the building and site were false and known by the defendants to be false at the time of making them, and were made with the intent to, and that they did, deceive the plaintiff; that the plaintiff was at the time wholly ignorant of the falsity of such representations and be
•The answer filed by the defendant J. B. Caro, which by stipulation of counsel was made the answer'of the other defendants also, put in issue all the allegations in respect to the false and fraudulent representations made by them and as to the plaintiff being deceived by any such representations or damaged thereby, and alleged the fact to be that at the time of the transaction in question the defendant Burford was the owner of the fishing outfit described in the written instrument already set out, which the plaintiff calls a receipt and the defendants a bill of sale; that at that time Burford also had an option upon a certain store building and site at Farragut Bay, Alaska, and that he sold to the plaintiff Martin a one-third interest in the fishing outfit for $2,000, which the plaintiff agreed to pay, and at the same time Burford fully stated to the plaintiff the fact that he held an option upon the building and site and explained to him all the • details in connection therewith, and agreed to exercise the option, and thereupon to convey to the plaintiff Martin a one-third interest therein as a part of the fishing outfit so purchased; that, upon the exercise by Burford of the right of purchase under the option, the plaintiff should become the owner of a one-third interest in the store building and site, and that Bur-ford in no way concealed any of the facts from the plaintiff; that the firm of J. B. Caro & Co., which consisted of the defendants Hooker and Caro, was at one time interested in a copartnership business known as the “Arctic Fishing & Packing Company,” and that the said defendant Hooker executed the instrument set out in the complaint for the firm of J. B. Caro & Co. “for no purpose except to 'convey to the plaintiff whatever interest said firm might still have in the outfit conveyed by reason of their former ownership and interest in and to the said Arctic Fishing & Packing Company, and for no other, further or different purpose whatsoever, all of which was well known and understood by the plaintiff at the time”; that the plaintiff agreed to pay for the one-third interest in the fishing outfit, store building, and site the sum of $2,000, to the defend
The plaintiff gave evidence tending to support the allegations of his complaint, and to show that the affirmative averments of the answer were not true; and there was contradictory evidence given on behalf of the defendants. The plaintiff also testified that merchandising was his regular business, and that the store building and site at Farragut Bay constituted the chief inducement to the purchase made by him.
The trial court instructed the jury, among other things, to the effect that: “If the plaintiff was aware that the representations alleged to have been made to him were false, or if the representations and surrounding circumstances were such as ought to have aroused suspicion as to their truth in the mind of a person of ordinary business care and caution, then he cannot recover unless he exer
This instruction, to which exception was taken by the plaintiff, cannot be sustained. The case shows that the situs of the property involved in the negotiation was in the sparsely settled territory of Alaska and remote from the place where the bargain was made, and practically inaccessible to the plaintiff at the time. According to the plaintiff’s testimony, it was a very material fact whether or not the defendants had a store building and site at Farragut Bay, a third interest in which they were entitled to sell, for his testimony is to the effect that, being engaged in the merchandise business, the principal inducement to his purchase was the store building and site at Farragut Bay in which to carry on that business. The defendants must have known whether they had such a store building and site at Farragut Bay, and whether or not they were entitled to sell to the plaintiff a one-third interest therein, for although, as is shown in the opinion of this court in the case of Heckman v. Sutter, 128 F. 393, 63 C.C.A. 135, the general land laws of the United States are not applicable to that territory, and therefore, unless the building and site in question was a part of some mineral claim, the legal title to the land is still in the government, still Act
In the case of Lisney v. Selby, 2 Ld.Raym. 1118, Lord Holt laid down the doctrine: “That a fraudulent misrepresentation or false assertion respecting a fact material to show the value of the land, by which the purchaser is injured, will subject the seller to an action for the deceit, though it was in the power uof the purchaser to ascertain whether the representations were true or not.”
The judgment is reversed, and cause remanded to the court below for a new trial.