128 Minn. 387 | Minn. | 1915
Plaintiff was injured by being thrown from a portable water tank while in the employ of the defendant lumber company. The injury was a fracture of the left thigh. The broken bone did not
1. The trial court properly disregarded the second alleged representation. This was plainly nothing more than an opinion expressed by one party to a negotiation upon a doubtful question of law. It is true, the statement was alleged to have been made by an attorney at law, but he was the attorney for the other party to the negotiation and there was no relation of dependence or confidence existing between them. There is nothing to indicate that the statement was made in bad faith. As a rule representations to be actionable must be of fact and not mere matter of opinion as to legal right.
2. We come then to the alleged representation as to what plaintiff’s doctor had said. It is a little hard to conceive that plaintiff could have relied upon this statement if it was made to him. He knew that his leg was shortened and that it would never become longer. He had been in almost daily contact with his doctor at the hospital and had been treated by him the very day of the settlement. It seems a little strange that he should, under these circumstances, take the doctor’s opinion second hand. It is in evidence, but denied by him, that he had discussed the question of settlement with Dr. Marcum before settlement was made. It is in evidence, and not denied, that within a few days after the settlement he discussed the settlement with Dr. Marcum and thought he ought to have had a little more.
But the fact that we consider conclusive against the plaintiff is the fact that after the truth or falsity of the alleged representation must have been apparent to him he spent the major part of the money that he had received on the settlement. We must bear' in mind that the essence of the alleged representation was a statement that the doctor said plaintiff would be “strong, pretty near as ever, in the course of two or three months.” This was August 26. After the expiration of more than two months, and on October 29, plaintiff deposited in the bank of Crookston $925 of this money. He then proceeded to check it out and use it little by little for a period of nearly five months, and after it was substantially all gone he then undertook to repudiate the compromise under which he had received it, and commenced this suit. This conduct on plaintiff’s part after discovery of the facts constituted a conclusive ratification by him
Judgment should be given for the defendant.