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argument, brief, or assignment of errors. , north, range 7 east of the Gila and Salt River The record has been examined for funda- base and meridian, situate in Coconino coun-. mental error, and we fail to find that any ty, state of Arizona.” At the same time and substantial right of the appellant has been place the appellant executed her deed to the denied.

appellee for the identical property described The judgment and order must be, and are in the contract and placed the same in estherefore, affirmed.

crow. A cash payment of $500 was made to

the appellant, and, by the agreement, the ap(18 Ariz, 536)

pellee was to pay the balance of $4,000 on or MCMILLON V. TOWN OF FLAGSTAFF.

before 40 days, and upon such payment was · (No. 1510.)

to receive from the escrow keeper the deed

to the above-described property. Some time (Supreme Court of Arizona. April 18, 1917.)

after the execution of the contract of sale 1. REFORMATION OF INSTRUMENTS 19(1)

and the deed, and prior to the expiration of MUTUALITY OF MISTAKE.

A deed containing a perfectly plain descrip- the option, the appellant, who was preparing tion of a certain 40 acres would not be re to farm some portion of the described land, formed, where no mistake was made by the was notified by some person acting for the scrivener, and the land was that which the pur

appellee that her farming operations were chaser intended to buy, and the mistake was solely that of the vendor as to the proper de

upon land that had been sold or optioned to scription.

the town of Flagstaff, whereupon the appel[Ed. Note.-For other cases, see Reformation lant, claiming that the contract and deed of Instruments, Cent. Dig. 88 74, 76–78.)

failed to describe the land she intended to 2. REFORMATION OF INSTRUMENTS CW22 sell, requested the appellee to change the deRATIFICATION. Where at the time of contract and partial

scription in said instruments by substituting cash payment deed of the property was placed

therefore “northwest quarter of the northin escrow, the later acceptance by vendor of the west quarter of section 4 in township 21 agreed purchase price and her permitting the

north, range 7 east of the Gila and Salt Rivescrow keeper to deliver the deed to the pur. I er base and meridian. The municipal auchaser after she discovered a misdescription of the land in contract and deed operated as a sur

thorities of Flagstaff refused to make the render of her claim of mistake and a ratifica changes requested, and insisted that the contion of the written instrument as speaking the tract be performed as originally written and truth.

executed. Later the appellant accepted from [Ed. Note.-For other cases, see Reformation of Instruments, Cent. Dig. & 81.]

the appellee the balance of $4,000, and the

escrowed deed was delivered to appellee. 3. EQUITY 3-DISTURBANCE OF EXECUTED CONTRACT.

| Negotiations of the sale were all carried Where parties, with full knowledge of the on personally by the appellant. She submitterms and conditions of a contract, dealing at ted testimony on the trial to the effect that arm's length, fully perform it, equity will not the northwest quarter of the northwest quarinterfere or lend its aid to disturb the situation. (Ed. Note. For other cases, see Equity, Cent.

ter was "pasture land” or “rocky land," and Dig. $$ 7-12.)

that she understood it to be the land she Appeal from Superior Court, Coconino

was selling. When questioned concerning County; F. W. Perkins, Judge.

the contract of sale, she said: Action by Katherine McMillon against thel, “I did not even read it carefully. I thought I Town of Flagstaff. From a judgment for knew the land so well. * * * I thought it

was the pasture land I was selling; I was posidefendant, plaintiff appeals. Affirmed.

tive that was the land I was selling them at that Thomas A. Flynn, of Phænix, and Fran- / time." cis D. Crable, of Flagstaff, for appellant. Edward M. Doe, Mercer Hemperly, and Jones

It is shown that the matter of the descrip& Jones, all of Flagstaff, for appellee. tion of the land as contained in the contract

and deed was not discussed at the time of ROSS, J. This action was brought by the signing or at any other time prior to her disappellant, who was the plaintiff below, to covery of the alleged mistake. reform a deed for 40 acres of land executed. The above is a condensed statement of the by her to the town of Flagstaff, appellee, for facts as disclosed by the pleadings and the a consideration of $4,500. The land was pur-evidence introduced on behalf of the appelchased for a reservoir site for the town. Ne-lant. At the close of her case the appellee gotiations for its acquisition had been carried moved for judgment, basing its motion upon on since some time in the summer or fall of a lack of evidence to establish the appellant's 1913 and until April 24, 1914, on which day cause of action or any cause of action against a written agreement was entered into be- the appellee. The motion was granted, and tween the parties, whereby appellant gave judgment was entered against appellant, a 40-day option to the appellee to purchase from which she appeals. the "east one-half of the northwest quarter | The finding of the trial court on the quesof the northwest quarter and the west one-tion as to whether there was mistake in the half of the northeast quarter of the north- description of the premises conveyed or not west quarter of section 4 in township 21 is as follows:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

AGES.

in

excess

"That the lands and rights of way agreed by 12. FRAUD 59(3) — DAMAGES – DIFFERENCE plaintiff to be by her sold and conveyed to de BETWEEN ACTUAL AND REPRESENTED VALUE. endant were the identical lands and rights of Where plaintiff pleaded in his reply to deway mentioned and described in the said agree- fendant's counterclaim for fraud in sale of land ment and in the said deed, and that the same that the land was of the value paid by defendwere the identical lands and rights of way ant, the measure of defendant's damages was which the defendant intended to buy and ac- the difference between the purchase price and quire from plaintiff, and that no mistake was the actual value as found; for, under such made by the scrivener who drew the said agree- pleading, the purchase price was the representment and deed, or otherwise, or at all."

ed value. We think the finding was fully justified by Dig. § 62.)

[Ed. Note.-For other cases, see Fraud, Cent. the evidence.

3. APPEAL AND ERROR Om 1068(4)-HARMLESS The trial court properly ordered judgment ERROR-INSTRUCTION ON MEASURE OF DAMfor the appellee for two good and sufficient reasons:

The giving of an instruction on measure of [1] First. The evidence failed to show the appellee's damages was not injurious, where

the jury did not follow it, but applied a rule mistake, if any, was a mutual mistake. At more favorable to appellant. most, it was a unilateral mistake as to the

[Ed. Note.-For other cases, see Appeal and identity of the subject-matter. It is not Error, Cent. Dig. § 4228; Trial, Cent. Dig. 8 shown that the appellee intended to purchase 481.) any other piece of land than the one describ- 1. APPEAL AND ERROR Cw1170(9)-REVERSAL ed in the contract and deed.

-TECHNICAL ERROR.

An instruction objected to as susceptible “A party to a contract cannot avoid it on the of being understood to require a finding for ground that he made a mistake where there has counterclaiming appellee

of the been no misrepresentation, and there is no am- amount admittedly due appellant, in the event biguity in the terins of the contract, and the appellee suffered any damages whatever, . was other contractor has no notice of such mistake, not reversible error, under the constitutional and acts in perfect good faith. A unilateral prohibition of reversal for technical errors, error, it has been said, does not avoid a con- where the jury specially found the amount of tract." 6. R. C. L. $ 42, p. 623; 9 Cyc. 394 ; appellee's damages, from which it deducted his 34 Cyc. 915.

admitted debt to plaintiff, and returned verdict

for the balance. [2] Second. After the appellant had dis

(Ed. Note.-For other cases, see Appeal and covered the misdescription of the land in the Error, Cent. Dig. $$ 4066, 4513.) contract and deed, as she claimed, she accepted the agreed purchase price and permitted Appeal from Superior Court, Maricopa the escrow keeper to deliver over to appellee County; R. C. Stanford, Judge. the deed conveying the property. In doing Action by Millard Wooley against Joe A. so it would seem that she surrendered her Locarnini. From judgment for defendant, claim of mistake and acquiesced in and rati- plaintiff appeals. Affirmed. fied the written instrument as speaking the G. W. Silverthorn, of Mesa, for appellant. truth.

M. J. Dougherty, of Mesa, for appellee. [3] Where parties with full knowledge of the terms and conditions of a contract, deal CUNNINGHAM, J. During the month of ing at arm's length, fully perform it, equity July, 1913, the appellee visited Arizona for will not interfere or lend its aid to disturb the purpose of buying a tract of land for the situation. Appellant, after full knowl- farming purposes. He is a farmer, and had edge of all the facts, accepted the considera- followed that occupation for a number of tion and delivered the deed of conveyance, years in California. He visited friends at or and thereby, we think, foreclosed herself near Gilbert, in Maricopa county, and while from ever thereafter questioning the trans- so visiting he, with his friends, met the ap action. 34 Cyc. 942, and cases cited under pellant. Upon inquiry, the appellant offered notes 13 and 14.

to sell to the appellee 80 acres of productive Judgment is affirmed.

farm land, The appellee was shown the

land, and the parties had a number of conFRANKLIN, C. J., and CUNNINGHAM, versations about the land, and the quality of J., concur.

the land. The appellant fixed as the price

for which he offered to sell at $110 per acre. (18 Ariz. 539)

After the parties had concluded negotiations WOOLEY V. LOCARNINI. (No. 1519.) on the occasion of the appellee's visit, with(Supreme Court of Arizona. April 18, 1917.) out arriving at any agreement, the appellee

returned to California, and later wrote from 1. APPEAL ERROR m216(3)— OBJEC

California to the appellant, accepting the TIONS BELOW-INSTRUCTIONS-NECESSITY OF REQUEST.

offer of the land for $110 per acre. Later, An instruction on counterclaiming defend- about the 1st of August, 1913, the appelleè ant's measure of damages was not reviewable, returned to the land, and a contract of sale where plaintiff neglected at the proper time to request a proper instruction, setting forth the was prepared and signed by the parties, by true rule of damages as he understood it. the terms of which the appellant agreed to

[Ed. Note.-For other cases, see Trial, Cent. sell the 80 acres of land described, for a Dig. § 640.)

consideration of $110 per acre or the full fra For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

AND

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sum of $8,800, which should be paid to the *

and was
on account thereof cheated

* of over party of the first part in the following man- and defrauded to an amount

$4,000; * that defendant should recov. ner: $300 had been paid; the sum of $15 per er that amount from plaintiff as the difference acre, or the sum of $1,200, should be paid as between the real value of the land and the soon as an abstract of said property had value, thereof had said representations been

true." l;een prepared and found to show clear title, except certain incumbrances; and the bal The plaintiff replied or answered the counance of said purchase price, to wit, $6,800, terclaim set forth by the defendant. on or before the 15th day of September, 1913. Therein he denies that he made the repre A failure to pay any of the amounts of mon- sentations complained of on January 7, 1914, ey provided to be paid the parties agreed when the note was made, or at any time. would work a forfeiture of the contract at He denies: the option of the seller. The appellee took

"That said land was fertile, and every part possession of the land as agreed, and, agree- raise good crops.”

thereof of such a nature that the same would able to the parties, he paid $8,000 of the

He denies: purchase price, and on January 7, 1914, $800

"That there was no sterile or slick soil upon of the purchase price remained due and pay said land, or that this plaintiff had raised crops able. Thereupon the appellee made, execut- upon each and every portion of said land." ed, and delivered to the appellant his promis The plaintiff further denies: sory note, due six months after date with

* That defendant, by an examination, interest, for the said balance of said pur- could not ascertain that said representations chase price of the land, and appellant ac

were false, and denies that the defendant relied

upon the plaintiff's statements, or any state cepted said note therefor. Prior to the date ments of plaintiff, regarding the quality of said of maturity of the said note, the appellee no- land, but alleges that defendant purchased said tified appellant that the land involved was land' with full knowledge of the condition of not of the quality represented, and that be going upon the same and with full opportunity,

the same after having examined said land by fore the appellee paid the appellant the to judge of the conditions of said land and soil." amount of the note, and other amounts of

This portion of the plaintiff's reply is in efaccount between the parties, an adjustment fect such a character of pleading as amounts of the matter would be insisted upon. The to an admission that plaintiff made the appellant accompanied the appellee over the statements and representations with which land, and appellee pointed out portions of he is charged with having made, but that he the land he claimed were not as represented, did not make such statements with regard to but which was worthless. No agreement was the making of the note in suit. This portion reached by the parties concerning this dis- l'of the pleading is a clear admission on the pute. When the note matured, the appel- part of plaintiff that there is sterile, slick lant, as plaintiff, commenced this action to soil on the tract, and that plaintiff knew it reduce the note and an account to a judg-existed thereon, and that the defendant had ment. The defendant admitted the making ample opportunity to know that such soil of the note and its nonpayment. He adinit- was on the tract and the extent thereof, and ted that he owed the account, and interposed with full knowledge in that respect the de a counterclaim based upon the allegations fendant nevertheless proceeded to, and did, that the plaintiff

purchase the land, after having examined the represented to defendant, that the same. The issue thereby raised is: Whether said lands were fertile, and every part thereof the defendant relied upon plaintiff's reprewas of such nature that the same would raise good crops: that there was no sterile, or so- sentations, which were admittedly false, or called 'slick' soil upon said land, slick land whether he relied upon the result of his perbeing such land as would not respond to irri- sonal examination of the condition of the gation, and would not raise crops under any lands. In other words, whether the false conditions of proper care and farming; also represented that plaintiff had raised crops upon representations of the condition of the land, each and every portion of said lands; that de- made by the plaintiff, were the proximate effendant, by an examination of said lands, could | ficient cause of defendant's injury and damnot ascertain that said representations were false, and relied upon plaintiff's statements, re

age. The reply continues further, as follows: specting the quality of said lands, and, relying “Plaintiff denies that any representations thereon, then and there agreed to pay the plain-made by this plaintiff to the defendant as to tiff a total price per acre for said lands, the the quality and condition of said land were sum of $110 per acre; that all of said purchase false and fraudulent, or that the plaintiff knew price has been paid, except the amount repre- that any statements made by him to the desented by the note described in the complaint. fendant regarding said land were false and That the representations made by plaintiff to fraudulent, and denies that the defendant rethe effect that there was no 'slick lands' upon lied upon any statements made by plaintiff, or said 80-acre tract were false and fraudulent, relied upon the truth of any statements made and that plaintiff knew that they were so false by plaintiff in regard to said land, or that any and fraudulent, and knew that defendant re- statements whatsoever were made by this plainlied upon same as being true, and were made tiff with the intention of inducing the defendant for the purpose of inducing defendant to pur- to purchase said land 'at a price in excess of chase said lands at a price greatly in excess of the value of said land." the real value of said lands, and defendant. re

The clear effect of these denials is to as. lying upon said statements and representations as being true, did pay for said lands all the sert that, while the plaintiff did make the al. purchase price thereof, except the said note, 1 leged representations, such representations

so made are true, and were made with the , Hence the plaintiff's allegations, to the effect intention of informing the defendant of the that the land was of the quality represented, actual worth of the property represented, and was actually worth the purchase price and for no other purpose. That the land as agreed upon, is only partially controverted, represented was actually worth the price ask- but that the actual value of land of the qualed and paid therefor, in both quality and ity represented was $110 per acre at the condition. Consequently the “plaintiff de time of the purchase and sale is not contronies that the defendant

was cheat-verted. ed or defrauded in any a’mount whatsoever." The defendant introduced evidence in supAs a further answer, the plaintiff asserts port of his counterclaim, tending to show that at the time defendant made the note, he that the plaintiff did make the alleged statehad been in possession of the land several ments and representations he is charged with months, and thereby had full opportunity to having made, and frequently repeated them determine the true condition and quality and prior to the close of the agreement; that the value of the land. This entirely avoids the statements made by the plaintiff were, in issue, and is not responsive thereto. It is effect, that the 80 acres of land were all good surplusage. As a further answer the plain- farming land, and contained no slick, hard, titi says:

worthless land, and that he would guaranThat said land sold by plaintiff to tee that it contained no such worthless land; defendant was, at the time of said sale, in every that the defendant was a stranger to the respect of the quality and in the condition in which the same was represented by plaintiff to Arizona lands, and so informed plaintiff ; and be, and that the same was of the value paid that defendant relied upon plaintiff's statetherefor by defendant."

ments and representations made regarding The last answer is in effect the same as the the quality of the land and its worth for preceding answers, all of which are simply farming purposes, of which the defendant inreasserted in the last. Certainly, the plain- formed the plaintiff prior to the time defendtiff's defense to the counterclaim is, as de- ant agreed to purchase the land. The determined from all of the allegations of his fendant further informed the plaintiff that answer thereto, that the land sold and pur- he, defendant, would buy no kind of land chased was of the quality and in the condi- other than good productive farming land; tion which the plaintiff represented it, and, that thereupon the plaintiff stated and repbeing of such quality and in such condition, resented that this particular 80 acres of land It was actually worth the sum for which it was all productive farming land, and that he was sold to the defendant. Consequently the (plaintiff) would guarantee it of such qualanswer is a denial when considered as a ity. After a few days consideration, the dewhole, that the representations and state fendant, having returned to California, acments made by plaintiff to defendant as to cepted the plaintiff's offer and notified plainthe quality of the land were false and fraud- tiff by letter that such offer was accepted, ulent, for the reason such statements made and in due time their contract of sale and are true, and that the land sold was actual. purchase was prepared and signed, by the ly worth the price agreed upon.

terms of which contract the defendant agreed C'pon a trial the jury returned a verdict for to pay therefor $8,800 according to the condithe defendant in the sum of $115. As an ex- tions of the written agreement. planation of their verdict, the jury included The evidence further tends to show that therein a special finding as follows:

the defendant took possession of the land "We find a total damage of $1,286 for defend- and paid $8,000 of the agreed purchase price, ant and deduct therefrom the plaintiff's claim for $1,171, leaving balance damage of $115.00." agreeably to some subsequent understanding The verdict was recorded, and judgment balance of the purchase price, viz. $800, be

of the parties; that on January 7, 1914, the entered in accordance therewith. From the judgment and from an order refusing a new

came payable; that the defendant made and trial the plaintiff appeals.

delivered the note in suit as, and the plainThe controverted questions litigated on the tiff accepted such note in, payment of the trial were whether the plaintiff made any said balance of the purchase price. Before statements or representations relative to the the said note became due, the defendant quality of the land involved, and whether in found, by actual farming, that a great porfact the land contained sterile, hard, slick, tion of the tract of land is in fact sterile, worthless spots, and, if so, the amount in hard, slick unproductive land, wholly wortharea of such worthless land contained in such less for the purposes of farming for which spots.

the defendant purchased the land. The The actual value of the land, at the time amount of such worthless land is estimated of its sale, is alleged by plaintiff to be $110 by the witnesses at amounts from nothing, per acre, or $8,800 for the 80 acres, the by plaintiff's witness, to 15, 18, 20, 25, 26%, amount of the purchase price. This fact is and 30 acres, by the defendant's witnesses. pot questioned by the defendant otherwise The defendant estimated that one-third of than by his assertion that the land was not the tract was of such worthless land. Othof the quality it was represented to be.ers of defendant's witnesses estimated 18 to Plaintiff asserts that it was of such quality. 120 acres; others, 20 acres; still others as

164 P.-21

an

much as 30 acres of worthless sterile, hard, | Locarnini; that the same were false when made, slick lands. No witness introduced by the and were such representations as a man of ordefendant estimated the amount of such land knew them to be false ; that the defendant,

clinary prudence would rely upon; that Wooley as less than 18 acres. The plaintiff, testify- Locarnini, did in fact rely upon tie representaing, did not admit that any part of the land tions, and was thereby induced to purchase the is sterile or slick soil. He testified that and from Wooley, and has been damaged there it is all good productive soil. He admitted damages as he may have suffered."

by, then the defendant should be allowed such that barren spots appear on the land, the spots testified to by the defendant's witnesses

The court followed with an instruction apas worthless slick land, but he asserted that plying the same rule in case the jury believed while such spots occur, they are caused that Wooley had no knowledge of the facts from defective irrigation, cultivation, and represented by him, but claimed to know the from pasturing cattle on the land at a time facts. This was followed by an instruction when the ground was wet and the crop of to the effect that the proof of the falsity of a alfalfa was too young to withstand such material representation made with knowltreatment. He estimated that the barren edge of the falsity, and with the intent to de spots would aggregate about 15 acres, but ceive the defendant, and that defendant was with farmerlike care, such spots would pro-actually deceived thereby to his damage, jusduce to the same extent of fertility as the tifies a recovery by the defendant. Thereother concededly fertile portions of the tract. upon the court instructed the jury as follows,

The plaintiff, testifying to other matters, of which complaint is made: denied that he made any representations at

"(1) If you find the defendant has been damall at any time with regard to the matter of aged, you should allow him as damages that

sum which will represent the difference between slick, hard land on the tract. He states that the purchase price of the land and what it is the subject was not mentioned at any time. actually worth; for example, if you find from The evidence introduced by the plaintiff, hard spots or slick land on the place, and you

the evidence (Wooley) represented there was no bearing upon the matter of the existence of find all the other facts necessary to entitle the sterile, slick land on the 80-acre tract, square- defendant to an award of damages, as explained ly conflicts with the evidence introduced by in these instructions, you should allow the dethe defendant, bearing on that matter.

fendant the difference between the value of the

land purchased and the purchase price of $110 The defendant in rebuttal introduced evi

acre, and what such land is worth with dence tending to show that the land while in hard spots or slick spots thereon. defendant's possession had been leveled, plow

“(2) If you find the defendant has suffered ed, seeded, and irrigated in a proper, farmer- of his damages the amount of the plaintiff's

damages, then you will deduct from the amount like manner, and still failed to produce crops; note and the interest thereon and sums due bim that the land had not been unreasonably on his open accounts, and return a verdict for pastured and thereby been damaged.

defendant for the balance of amount." Considerable testimony was introduced in The first quoted paragraph is said to be the case tending to show the value of land

erroneous for the reason that it does in the vicinity. The witnesses fixed as the not state a correct measure of damages and value of good productive land in that vicinity, evidence by the jury. The correct measure of

form a proper basis for a consideration of the during the year 1913, from $100 per acre to vlamages in cases of this kind is the difference $135 per acre. One witness testified that between the value of the land at the time of such land was worth $150 per acre. The

purchase, if it had been as it was represented

and its actual value at that time." plaintiff testified that this particular tract of land in his judgment was worth $110 per

[1, 2] This contention cannot be allowed, acre. The various witnesses estimated the for two reasons: First, because the plaintiff value of this land by the prices paid for other neglected at the proper time to request a land in the vicinity at the time in question. proper instruction setting forth the true rule All of the witnesses agreed that slick land, of the measure of damages as he understands when it actually occurs, is absolutely worth that rule; and, second, because the plaintiff less for the purpose of farming.

alleged in his reply to defendant's counter

claim: Such is a brief summary of the evidence before the jury at the close of the testimony. defendant was, at the time of said sale, in ev

* That said land sold by plaintiff to The court instructed the jury satisfactorily cry respect, of the quality and in the condition to the parties with regards to the controvert-in wbich the same was represented by plaintiff ed matters of fact. At least, no assignment to be, and that the same was of the value paid of error is based upon such controverted mat

therefor by defendant." ters.

The plaintiff is thereby precluded from The court instructed the jury regarding contending that the price paid for the land the alleged false and fraudulent representa- was other than the actual value of the land tions of the quality of the land and their at the time of the sale, and the actual value duty in respect to such matters. Thereupon if it was as represented. Whether the land the court gave the following instruction, of was of a value less than the purchase price which appellant has not complained:

was the issue on trial. If found to be of a "If you believe from all of the evidence the al- less value, then the measure of damages was leged representations were made by Wooley to the difference between the actual value as

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