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subsequently confirmed and approved by the In our opinion, these cases are decisive court, and judgment entered accordingly, and of the question under consideration. It fola decree entered in favor of John B. lIowery, lows that the judgment of the court below declaring him to be the owner in fee simple must be affirmed. of the premises in controversy, and quieting his title thereto, and that the plaintiff had

BURWELL, J., who presided in the court no title, interest, or claim thereto. TO below, not sitting. All the other justies which ruling, order, judgment, and decree of concurring. the court the plaintiff duly excepted, and brings the case here for review.

117 Okl. 10) Fulton & Paul and Asa Jones, for plaintiff

BOGARI) et al. v. SWEET et al. in error. T. G. Chambers and J. C. Pether (Supreme Court of Oklahoma. Sept. 1), 1904.) bridge, for defendant in error.

CANCELLATION OF INSTRUMENTS-DEED-Cox-
TRAIT.

Where S. purchases from the state oi HAIXOR, J. (after stating the facts).

Texas land in what is now Greer county, Okl.. The record presents but one question for coll anil plats the same as a portion of the toxnsideration, and that is whether the grantor

site of Mangum, and thereafter enters into a

('ontract with certain prsons for the establishin the deed executed on August 5, 1893, had

ment of a newspaper, wherein it is agreed that suflicient mental capacity at that time to such persons shall form a corporation, and ruin make the conveyance. The record discloses said newspaper and sell S.'s townsite property. that a large volume of evidence was intro

and collect certain notes held by him, paying

two-thirds of all amounts received to said s. duced on both sides. The referee, after hear themselves retaining one-third ; and where s.. ing all the evidence, found every material in pursuance of said contract, as a matter of and controverted fact against the plaintiff,

convenience, executes and delivers to such pre and the trial court contirmed and approved

sons a warranty deed to said land, and sirohi

corporation is never formed, but the project the findings of the referee, and entered is abandoned, and the deed, together with the judgment accordingly. In our opinion, while notes, returned to S., helil, that S., in such case.

is entitled to a decree (anceling such contract, the evidence appears to have been contlicting,

and the deed executed thereundei. the referee was fully warranted in finding

[Ed. Note.--For cases in point, see Cent. Dig. that the grantor had sufficient mental (al vol. 8, Cancellation of Instruments. $$ 1-6.] pacity to execute the deed which is the sub

(Syllabus by the Court.) ject of this controversy, and that the de

Error from District Court, Greer County; fendant Howery was a bona fide purchaser

before Justice James K. Beauchamp. for value; and, there being sufficient evi

Action by H. C. Sweet and other's agiiinst dence to sustain and uphold the findings of

J. G. Bogard and others. Judgment for the referee, the law is well settled by this

plaintiffs, and defendants bring error. At. court, as well as the courts of other juris-firmed. dictions having similar statutes, that such findings will not be disturbed by the appel

This was an action commenced in the late court. In Erisman v. Kerwin, 8. Okl.

district court of Greer county by H. C. 92. 56 Pac. 838, this court held that "the

Sweet and others against J. G. Bogard et al. findings of the referee must be regarded by

for the cancellation of a deed to certain the court as having the same force and

town lots in the city of Mangum, Greer coun

ty, and a certain contract made in connection weight as the verdict of a jury, and should not be disturbed, unless clearly against the

therewiti. A number of the defendants anweight of the evidence." In Harper v.

swered, disclaiming any interest in the propIlendricks. 49 Kan. 718, 31 Par. 734, the Su

erty, and, the plaintiff having died, the acpreme Court of Kansas held that: "Where

tion was revived in the name of the heirs.

Judgment was rendered, canceling the deed a cause is referred to a referee, with the consent of all the parties, to hear the same,

and contract as prayed for in the petition.

The record discloses that, at a date when and to make his report of the facts and the

Greer county was claimed to be a part of. law, and such report is afterwards confirm

and under the jurisdiction of, the state of ed by the district court, the judgment will

Texas, II. C. Sweet purchased the land in not be set aside as against the evidence, al

controversy from that state, and, while lainthough that is greatly conflicting, if there

ing the same under such title, plattel it is sufficient to sustain the findings of fact

irto town lots which became, and were at the upon which the judgment is rendered." Anil

time of the action, a part of the townsite of in Velill r. Snyder, 01 Kan. 15. 58 Pac. 962.

the city of Mangum. H. C. Sweet, desiring 78 Am. St. Rep. 307, it was held that: “The

to aid in the upbuilding of a newspaper and (redibility of the witnesses and the proba- : the town generally, entered into il contract tive force of the facts as to testamentary with the defendants in error, and others, to incapacity were for the determination of the į allow the plaintiffs in error to sell his towntrial court, and, it appearing that there is site property, and to collect certain notes legal evidence to support the findings, these which he then had, for property by him matters are not open for further considera theretofore sold, the understanding and tion.”

agreement being that, in order to facilitatte

the business, the plaintiffs in error were to the persons interested. Some few, however, torm a corporation for the purpose of run refused to reconvey, and set up claims to ning the newspaper and selling the real es the property, but we cannot see upon what tate, it being agreed that the corporation theory they can claim to be the owners of should sell the property and collect the notes, the property as against Sweet and his heirs. and pay to Sweet two-thirds of the amount There were a large number of lots transof the sales, and retain one-third thereof ferred, and a large number of notes placed its their commission. As a matter of con in the company's hands for collection. The venience, in the carrying out of the con consideration mentioned in the deed is $10, tract, a deed was made by Sweet and wife a mere nominal sum. The amount they to all of the property. Afterwards an at should receive as compensation was onetempt was made to form the corporation.

third of the sales and from collections. As There being no law in Texas under which testified to by some of the witnesses, they such a corporation could be formed, that soon found that the expense of collecting portion of the scheme failed, and, as shown the notes would be more than their fees, liy the record, the project was dropped by and they simply abandoned any attempt to almost all, if not entirely all, of the parties carry out the provisions of the contract on connected therewith, and the decil, although tiieir part. One of the parties testified he recorded, was returned to Sweet, together delivered the deed back to Sweet, all supwith the notes. Soon after, the decision posing that would be all-sufficient. There was rendered by the Supreme Court of the is nothing in the case that requires the apUnited States, holding that Greer county plication of any rule of law other than did not belong to the state of Texas, but those which the above statement justifies. was a part of Oklahoma. Sweet, finding that There is absolutely no defense to this achis title from the state of Texas was of no tion, and the judgment of the trial court validity, entered the land under act of Con vas certainly the correct one. gress approved January 18, 1897, C. 62, § 1, Finding no error in the record, the judg29 Stat. 190 (U. S. Comp. St. 1901, p. 1621].

ment of the court below is affirnied. All The deed made by Sweet and wife to the the Justices concurring. company, however, having been recorded, constituted a cloud upon his title, hence this action to remove the same.

(17 Okl. 70)

LONG v. KENDALL. Shartel Keaton & Wells and J. A. Powers, for plaintiffs in error. Garrett & Garrett

(Supreme Court of Oklahoma. Sept. 4, 1906.) and Chas. M. Thacker, for defendants in 1. VENDOR AND PURCHASER – FRAUDULENT error.

REPRESENTATIONS — EXPRESSION OF OPIN-
IONS.

In the sale of real estate, the expression of FANCOAST, J. (after stating the facts). a mere matter of opinion as to the value thereof, The contention of the plaintiffs in error is

made by the vendor, where the truth of the

statement can be as readily determined by the that the contract is one of monetary con vendee as the vendor, and where no attempt is sideration, that mentioned in the deed being made to prevent an investigation by the vendee, $10, and that the title afterwards acquired by / and where the vendee has an opportunity to

investigate, and does not investigate, to deterSweet from the United States should inure

mine the correctness of the opinion expressed to the benefit of the grantees, and that there as to value, such statement so made as to value is no such case for equity as will warrant by the vendor will not be treated as such fraudthe court in canceling the deed and contract.

ulent representations as would vitiate the con

tract, or be a cause for an action for fraud and Very elaborate briefs have been filed, and

deceit. the case has been argued upon numerous [Ed. Note.-For cases in point, see Cent. Dig. different grounds, many of which we think vol. 48, Vendor and Purchaser, $$ 40, 52, 53.] have no application to the facts in the case, 2. SAME-OPPORTUNITY TO INSPECT. or to any rule that should govern the court In the sale of property, where the means of in its decision. In fact, many of the ques

knowledge are general and equally available to

both parties, and the subject of purchase is tions argued have served only to confuse the

alike open to their inspection, if the purchaser court in arriving at the real contention in does not avail himself of these means and opthe case.

portunities, he will not be heard to say, in im

peachment of the contract of sale on the grounds The evidence abundantly shows that

of fraud and deceit, that he was deceived by the Sweet's purpose in making the contract was vendor's misrepresentations. to aid in the upbuilding and advertising of Ed. Note.For cases in point, see Cent. Dig. the town generally, and the printing of a

vol. 48, Vendor and Purchaser, $8 40-43, 52,

53, 57.] newspaper. In order to do this, he placed this property in the hands of the parties in

3. TRIAL - EVIDENCE -- INSTRUCTIONS-WITHorder that they might sell the same and

DRAWING FROM JURY.

Where, in the trial of a cause, certain evirecei compensation therefor. By this con dence is offered, objected to, and the objection tract, the parties became his agents, and he overruled, and the evidence permitted to go to was entitled to a reconveyance of all of the

the jury, and where certain instructions as to

the law are given in favor of the defendant over unsold property. All the contentions of

the objection of the plaintiff, and after the jury Sweet were conceded by a large number of have retired to deliberate on .their verdict, and

before a verdict is reached, the court, on re fendant in the court below also claimed flection, concludes that the evidence was improp damages in the sum of $1,650 for false er and the instructions wrong, and the court

and fraudulent representations which incalls the jury into open court and by a written instruction withdraws such evidence and such

duced him to enter into the contract; that instructions from the jury, if such evidence was the said Kendall, defendant in error, falseimproper and such instructions contrary to the law, such action of the court in withdrawing

ly and fraudulently represented to himn that the same from the consideration of the jury will

the farm he was getting in exchange for not constitute reversible error.

this stock of goods was of great value, and [Ed. Yote.-For cases in point, see Cent. Dig. | was worth the sum of $3,500, when in truth vol. 46, Trial, $$ 130, 568.]

and in fact the said farm was not worth (Syllabus by the Court.)

to exceed the sum of $2,000. To this answer Appeal from District Court, Payne Coun a reply of general denial was filed. On the ty; before Justice Jno. H. Burford.

trial of the case in the district court, the Action by E. B. Kendall against Ben F. trial judge permitted the introduction of Long. Judgment for plaintiff, and defend testimony as to the cross-petition of said ant brings error. Affirmed.

Long, showing his damages for the false

and fraudulent representations of the said This case was commenced in the district

Kendall as to the value of said farm, and court of Payne county, Okl. T., on the 220

instructed the jury on that subject as to day of April, 1904, by E. B. Kendall, the

the law. After the jury had been out dedefendant in error, against Ben F. Long,

liberating on their verdict for a number of the plaintiff in error, to recover damages in the sum of $1,500 on an alleged guaranty

hours, the trial court called the jury into

open court, and by a written instruction in a contract of sale of a stock of merchan

withdrew from the consideration of the jury dise which was made by and between the

all the testimony as to the statements of said E. B. Kendall and Ben F. Long on the

Kendall as to the value of the farm, and all 2d day of April, 1904. The part of said con

instructions given on that subject, to which tract of sale wherein the plaintiff in the

the defendant, Long, then and there excepted. court below claimed that the defendant guar

Afterwards the jury returned a verdict in antied said stock of merchandise reads as

favor of the plaintiff, Kendall, in the sum follows: "The said Ben F. Long agrees with

of $547. Motion for new trial was made and hereby guarantees to said E. B. Kendall

and overruled, and judgment rendered on that the said stock of goods mentioned

the verdict, to all of which the defendant above are of the value of twenty-three hun

excepted, and brings the case here for redred dollars ($2,300.00); that the cost mark

view. of said goods is the cost mark representing the original cost of said goods at the whole

Charles E. Bush, for plaintiff in error. W. sale house, and guarantee cost price at ac

B. Williams and Geo. P. Uhl, for defendant tual cost in St. Louis, Mo.; that the stock is

in error. not moth-eaten, not damaged in any manner more than an average stock of goods of IRWIN, J. (after stating the facts). The its class." The said E. B. Kendall, defend first assignment of error to which the counint in error, claimed that the invoice of sel for plaintiff in error cite the court as said goods according to the cost mark was a cause for a reversal of this case is that only $1,916.12, and that the cost mark on the court erred in permitting the witness said goods was 20 per cent. in excess of the S. E. McNaul to testify as to the value of the actual cost of said goods at the wholesale goods when he invoiced the same in 1904, house in St. Louis; that about one-half of at the town of Agra, Okl. The ground of said goods were almost worthless by being the objection to the testimony of this witmoth-eaten, rat-eaten, faded, spotted by wa ness in the court below was that he had not ter and exposure, shelf-worn, discolored, fray-shown himself competent and qualified to ed, soiled, broken, and damaged by unskill testify on the subject. We think a referful handling and packing to the amount of ence to the case-made at pages 55 and 56 at least 75 per cent. of its original value; will show that this witness was fully qualiand that the same was damaged at least fied to testify. He there testified to many 60 per cent. more than an average stock of years' experience in the handling of this its class. To this petition the defendant, kind and character of goods, and that he had Long, plaintiff in error here, in his answer been for years a traveling salesman on the first admits the making of said contract, road, and is thoroughly familiar with the and claimed that said contract was altered quality and price of said goods. The obby an executed oral agreement, which was jection urged by counsel for plaintiff in error made and entered into on the 4th day of is that, while he has shown a general qualiApril, two days subsequent to the making fication and general knowledge of this class of the original contract. By the terms of of goods and their prices, he has not shown said oral contract the said Kendall, defend that he ever had any experience in the parant in error, accepted the stock of goods ticular locality where this transaction occurwithout invoicing the same, as the same had red. We do not think this objection is ten. been shipped in inclosed boxes. The de

able. The question here before the jury

was as to the general depreciation of said soods and the percentage of depreciation of the particular goods in question. This, it Seels to us, would not be dependent upon questions of latitude and longitude, and would not depend on any particular locality. We think the depreciation, when measured by the prices, would be the same, whether in Maine or Texas; and this is the opinion given the expert in his testimony on page 02 of the record, when he was asked the question as to whether the depreciation would vary with localities or whether it would be general. The answer is: “The depreciation would be general. It don't make any difference whether it was Texas or (alifornia, in my judgment." And this we think Wits reasonable. The ques tion was, what was the general depreciation of this stock of youds in connection Witli the values, disclosed in the evidence? That dereintion was asked for, based up ani errentage as to the cost price, and while the cost price might be different in Wilferent localities, where the estimate is Huisci urn the percentage of the cost price, che risible in the price would make no diffil We think there was no error in ::itting the testimony of this witness.

The second assignment of error is that the ourt erreel in excluding the testimony in reference to the execution of the oral contrairy that change the written contract which was made by and between plaintiff and infendant, and in support of this counSel (ite sextion 7, art. 7, c. 16, of the Stat1116 of 155), which provides as follows: "A contract in writing may be altered by a contract in writing, or by an executed oral 19rrement, and not otherwise." Now we do not think this assignment of error is well takeni. We have examine the entire record, and so far as we can find there is no express exclusion of any testimony upon this point. It payes 131, 132, und 13: the deferant in the court below w:s permitted, without objection, to testify to the entire transaction from the time the goods were sold to the plaintiff up to the time of the delivery. Ile goes on and tells all that took place, and the details of the transaction as to the sale of the goods and the delivery of the deed and money in escrow, and the delivery of the goods, and does not there speak of my subsequent executed oral contract. Whether the evidence is labeled "pvidence as to executed oral contract." or by whatever name it is known, whatever evidence there was on this subject, known to the recendant, went to the jury in his testimony, and if there is anywhere in the recorsi that the court has sustained an objection, or excluded testimony upon the question of this subsequent orally executed contract. so-called by plaintiff in error, we are unable to discover it, and counsel in their brief have not seen fit to point it out to us,

and we do not think it is any part of the business of the court to minutely and carefully scrutinize every word and syllable in an entire and voluminous case-made, to discover errors which counsel claim the record contains, which they do not deem advisable to particularly point out to us.

The third assignment of error is that the court erred in giving instruction No. 11 to the jury; that is, the instruction which was given to the jury after they had been for some time deliberating on a verdict, and Defore they arrived at a conclusion, withdrawing from their consideration the evidence and instructions relating to the question of the representations made by Kendall of the value of the farm traded to Long. Now the only question to be determined by this court, in leciding whether the action of the district court in this particular was right, is to determine whether the facts disclosed by this evidence was such a fraud as would vitiate the contract, or would entitle the party to damages for frauil and deceit. The representations, as having been shown by the answer of the defentiant as having been made by Kendall, were at best mere expressions of opinion. According to the statements in the answer, Kendall represented to the defendant, Long, that the farm he was trading him was worth $3,500. This would be a mere matter of opinion. There is nothing in the record to show but what Long was just as familiar with the land as Kendall-had just as good an opportunity to know its value. The record shows nothing that would indicate any attempt on the part of Kenilall to prevent Long from investigating as to the value of the land, and we take the true rule to be that where the opportunities for investigation are equal between the parties, where one has the same opportunity to know the facts as the other and to determine the correctness of the opinion as to the value expressed, mere mistakes or misstatements as to the value will not amount to a warranty, or be a cause for rescinding the sale on the ground of fraud, or entitle the party to bring an action for fraud and deceit.

Judge Wood, in his latest cilition of Addison on Torts (vol. 2, p. 119, $ 1185), lays down the rule that “where the real quality of the thing is an object of sense obvious to ordinary intelligence, and the parties making and receiving the representation have equal knowledge or means of acquiring information, and the correctness or incorrectness of the representation may be ascertained by the party interested in knowing the truth, by the exercise of ordinary inquiry and diligence, and the representation is not made for the purpose of throwing the latter off his guard and preventing him from making those inquiries and examinations which every prudent person ought to make, there is no Warranty of the person's knowledge of the

truth of his representation, or of the fact judge of a matter for himself, he relies npon being as it is stated to be.

*" The

the representations of another, then, should same author (at page +21. 1156) says: he stand on equal footing, without exercis“When the representation is made concern ing the means of knowledge open to him, ing something which is mere matter of opin neither courts of law nor courts of equity ion, which every man can exercise his own will relieve him from the effect of such judgment upon and inquire about, it is the folly." plaintiff's own fault if he suffers himself to In the mase of Miller v. Craig, reported in be deceived. If the person giving his opinion :30 Ill. 10.), the Supreme Court of Illinois, or exlire-silig his belief, does not possess any says: "Wlen parties are negotiating for the exclusive means of knowledge, and merely purchase un sale of property, real or persays that which he think to be true, there sonal, each party has a right to exalt the is no fraud, however erroneous may be the value of his own property to the highest statement he has made. If, therefore, a point his antagonist's credulity may bear, and (lefendant, having reason to believe and actu depreciate that of his opponent. If there is ally believing a particular fact to be true, has opportunity to examine the property, such represented it as such to the plaintiff, he is boastful issertions, or exaggerated descripnot, as we have seen, liable to an action inere tions cannot be considered as amounting to ly because it turns out that he was mistaken fraudulent representation or deceit." and his representation was false.

Yow, decled by the rule enunciated by The Supreme ('ourt of the United States, these authorities, this portion of the answer in the case of Slaughter's Administrator v. of the defendant in the court below did not Gerson, reported in 13 Wall. 379, 20 L. Ed. state any cause of defense, and, had a de627. says, in the syllabus: "(1) The mis inurrer been filed thereto, it would undoubtrepresentation which will vitiate a contract cally have been sustained by thie court. This of sale, and prevent a court of equity from being true, any evidence offered to prove aiding its enforcement, must relate to it that issue, when objected to, was not admismaterial matter constituting an inducement sible, ind it was error for the court to reto the contract, and respecting which the ceive such testimony. It was also error for complaining party did not possess at hand the court to instruct the jury upon this thethe means of knowledge; and it must be it i ory of defense, and we think that, at any misrepresentation upon which he relievl, and time during the trial and before final judgby which he was actually misleil to his in ment that such error was discovered by the jury. (22) Where the means of knowledge trial court, it was his duty to correct that are at hand and equally available to both error by withdrawing that issue from the parties, and the subject of purchase is alike (onsideration of the jury: such a course beopen to their inspection, if the purchaser does ing preferable to allowing the cause, after not avail himself of these means and oppor the discovery of such error by the court, to tunities, he will not be heard to say, in im proceed to final judgment, and then seeking peachment of the contract of sale, that he to rectify the error by granting a motion was deceived by the vendor's misrepresenta for new trial. This latter course would tions." And in the body of the opinion Mr. cause unnecessary costs and useless expense Justice Field, speaking for the court on page to both parties. Hence we think the court 383 of the opinion, use this language: “A was right in taking the course he did, and court of equity will not undertake, any more withdrawing the entire matter from the conthan a court of law, to relieve a party froin sideration of the jury before they had arrived the consequences of his own inattention and at il verdict; and, the court having done so carelessness. Where the means of knowledge by a proper instruction in open court, we do are at hand and equally available to both not think it is any cause for a reversal of parties, and the subject of purchase is alike this cause. open to their inspection, if the purchaser does Counsel for defendant in error devote a not avail himself of these means and oppor considerable portion of their brief to a distunities, he will not be heard to say that cussion of the act of the territorial Legis. he has been deceived by the rendor's mis lature permitting amendments to the caserepresentations. If. having eyes, he will not made, and we think that to some extent the see matters directly before them, where no contention of counsel is correct, and that his concealment is made or attempted, he will criticism is worthy of attention, but in that not be entitled to favorable consideration connection we desire to call the attention when he complains that he has suffered of the writer of defendant in error's brief from his own voluntary blindness, ant las to certain paragraphs in his own statement. been misled by overconfidence in the state In the course of his brief, in sustaining cerments of another."

tain positions which he assumes, he cites cerMr. Story, in his excellent work on Equity tain cases, without giving the court any light Jurisprudence (volume 1 [3d. Ed.] $8 199. as to where such cases may be found. Il200), lays down this rule: "Where a party lustrative of this, we call attention to his can protect himself by ordinary care and brief at page 8, where he cites the case prudence, he must do so; and if, with full of Bessingham v. Syck et al., and then means of knowledge, being equally able to quotes from that authority. Also, on page 9, 87 P.-13

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