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 appellee was to pay the balance of $4,000 on or before 40 days, and upon such payment was to receive from the escrow keeper the deed to the above-described property. Some time after the execution of the contract of sale and the deed, and prior to the expiration of the option, the appellant, who was preparing to farm some portion of the described land, was notified by some person acting for the appellee that her farming operations were upon land that had been sold or optioned to 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. §§ 74, 76-78.] 2. REFORMATION OF INSTRUMENTS

RATIFICATION.

failed to describe the land she intended to 22-sell, requested the appellee to change the deWhere 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 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 the appellee the balance of $4,000, and the escrowed deed was delivered to appellee.

[Ed. Note.-For other cases, see Reformation of Instruments, Cent. Dig. § 81.] 3. EQUITY 3—DISTURBANCE OF EXECUTED

CONTRACT.

Where parties, with full knowledge of the terms and conditions of a contract, dealing at arm's length, fully perform it, equity will not

interfere or lend its aid to disturb the situation.

[Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 7-12.]

Appeal from Superior Court, Coconino County; F. W. Perkins, Judge.

Action by Katherine McMillon against the Town of Flagstaff. From a judgment for defendant, plaintiff appeals. Affirmed.

Thomas A. Flynn, of Phoenix, and Francis D. Crable, of Flagstaff, for appellant. Edward M. Doe, Mercer Hemperly, and Jones & Jones, all of Flagstaff, for appellee.

Negotiations of the sale were all carried on personally by the appellant. She submitted testimony on the trial to the effect that the northwest quarter of the northwest quarter was "pasture land" or "rocky land,” and

that she understood it to be the land she was selling. When questioned concerning the contract of sale, she said:

It is shown that the matter of the description of the land as contained in the contract and deed was not discussed at the time of signing or at any other time prior to her discovery of the alleged mistake.

The above is a condensed statement of the facts as disclosed by the pleadings and the evidence introduced on behalf of the appel

ROSS, J. This action was brought by the appellant, who was the plaintiff below, to reform a deed for 40 acres of land executed by her to the town of Flagstaff, appellee, for a consideration of $4,500. The land was purchased for a reservoir site for the town. Ne-lant. At the close of her case the appellee gotiations for its acquisition had been carried on since some time in the summer or fall of 1913 and until April 24, 1914, on which day a written agreement was entered into between the parties, whereby appellant gave a 40-day option to the appellee to purchase 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:

moved for judgment, basing its motion upon a lack of evidence to establish the appellant's cause of action or any cause of action against the appellee. The motion was granted, and judgment was entered against appellant, from which she appeals.

"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. fendant 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.

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

We think the finding was fully justified by Dig. § 62.]

the evidence.

The trial court properly ordered judgment for the appellee for two good and sufficient

reasons:

3. APPEAL AND ERROR 1068(4)-HARMLESS ERROR-INSTRUCTION ON MEASURE OF DAM

AGES.

The giving of an instruction on measure of appellee's damages was not injurious, where the jury did not follow it, but applied a rule more favorable to appellant.

[1] First. The evidence failed to show the mistake, if any, was a mutual mistake. At 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. § shown that the appellee intended to purchase 484.] any other piece of land than the one describ-4. APPEAL AND ERROR ed in the contract and deed.

"A party to a contract cannot avoid it on the ground that he made a mistake where there has been no misrepresentation, and there is no ambiguity in the terms of the contract, and the other contractor has no notice of such mistake, and acts in perfect good faith. A unilateral error, it has been said, does not avoid a contract." 6 R. C. L. § 42, p. 623; 9 Cyc. 394; 34 Cyc. 915.

[2] Second. After the appellant had discovered the misdescription of the land in the contract and deed, as she claimed, she accepted the agreed purchase price and permitted the escrow keeper to deliver over to appellee the deed conveying the property. In doing so it would seem that she surrendered her claim of mistake and acquiesced in and ratified the written instrument as speaking the truth.

-TECHNICAL ERROR.

1170(9)-REVERSAL

An instruction objected to as susceptible of being understood to require a finding for counterclaiming appellee in excess of the amount admittedly due appellant, in the event appellee suffered any damages whatever, was not reversible error, under the constitutional prohibition of reversal for technical errors, where the jury specially found the amount of appellee's damages, from which it deducted his admitted debt to plaintiff, and returned verdict for the balance.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4066, 4543.]

Appeal from Superior Court, Maricopa County; R. C. Stanford, Judge.

Action by Millard Wooley against Joe A. Locarnini. From judgment for defendant, plaintiff appeals. Affirmed.

G. W. Silverthorn, of Mesa, for appellant. M. J. Dougherty, of Mesa, for appellee.

CUNNINGHAM, J. During the month of July, 1913, the appellee visited Arizona for the purpose of buying a tract of land for farming purposes. He is a farmer, and had followed that occupation for a number of years in California. He visited friends at or

[3] Where parties with full knowledge of the terms and conditions of a contract, dealing at arm's length, fully perform it, equity will not interfere or lend its aid to disturb the situation. Appellant, after full knowledge of all the facts, accepted the consideration and delivered the deed of conveyance, and thereby, we think, foreclosed herself near Gilbert, in Maricopa county, and while from ever thereafter questioning the transaction. 34 Cyc. 942, and cases cited under notes 13 and 14.

Judgment is affirmed.

so visiting he, with his friends, met the appellant. Upon inquiry, the appellant offered to sell to the appellee 80 acres of productive farm land. The appellee was shown the land, and the parties had a number of con

FRANKLIN, C. J., and CUNNINGHAM, versations about the land, and the quality of

J., concur.

(18 Ariz. 539)

WOOLEY v. LOCARNINI. (No. 1519.) (Supreme Court of Arizona. April 18, 1917.) 1. APPEAL AND ERROR 216(3)-OBJECTIONS BELOW-INSTRUCTIONS-NECESSITY OF REQUEST.

An instruction on counterclaiming defendant's measure of damages was not reviewable, where plaintiff neglected at the proper time to request a proper instruction, setting forth the true rule of damages as he understood it.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 640.]

the land. The appellant fixed as the price for which he offered to sell at $110 per acre. After the parties had concluded negotiations on the occasion of the appellee's visit, without arriving at any agreement, the appellee returned to California, and later wrote from California to the appellant, accepting the offer of the land for $110 per acre. Later, about the 1st of August, 1913, the appellee returned to the land, and a contract of sale was prepared and signed by the parties, by the terms of which the appellant agreed to sell the 80 acres of land described, for a consideration of $110 per acre or the full

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

and was on account thereof cheated * of over and defrauded to an amount $4,000; * * * that defendant should recover that amount from plaintiff as the difference between the real value of the land and the value thereof had said representations been true."

The plaintiff replied or answered the counterclaim so set forth by the defendant. Therein he denies that he made the representations complained of on January 7, 1914, when the note was made, or at any time. He denies:

"That said land was fertile, and every part thereof of such a nature that the same would

raise good crops."

He denies:

The plaintiff further denies:

That defendant, by an examination, could not ascertain that said representations were false, and denies that the defendant relied upon the plaintiff's statements, or any statements of plaintiff, regarding the quality of said

sum of $8,800, which should be paid to the party of the first part in the following manner: $800 had been paid; the sum of $15 per acre, or the sum of $1,200, should be paid as soon as an abstract of said property had been prepared and found to show clear title, except certain incumbrances; and the balance of said purchase price, to wit, $6,800, on or before the 15th day of September, 1913. A failure to pay any of the amounts of money provided to be paid the parties agreed would work a forfeiture of the contract at the option of the seller. The appellee took possession of the land as agreed, and, agreeable to the parties, he paid $8,000 of the 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 promissory note, due six months after date with interest, for the said balance of said purchase price of the land, and appellant accepted said note therefor. Prior to the date of maturity of the said note, the appellee no-land, but alleges that defendant purchased said tified appellant that the land involved was and 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 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-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 admitted that he owed the account, and interposed a counterclaim based upon the allegations that the plaintiff—

represented to defendant, that the said lands were fertile, and every part thereof was of such nature that the same would raise good crops; that there was no sterile, or socalled 'slick' soil upon said land, slick land' being such land as would not respond to irrigation, and would not raise crops under any conditions of proper care and farming; also represented that plaintiff had raised crops upon each and every portion of said lands; that defendant, by an examination of said lands, could not ascertain that said representations were false, and relied upon plaintiff's statements, respecting the quality of said lands, and, relying thereon, then and there agreed to pay the plaintiff a total price per acre for said lands, the sum of $110 per acre; that all of said purchase price has been paid, except the amount represented by the note described in the complaint. That the representations made by plaintiff to the effect that there was no 'slick lands' upon said 80-acre tract were false and fraudulent, and that plaintiff knew that they were so false and fraudulent, and knew that defendant relied upon same as being true, and were made for the purpose of inducing defendant to purchase said lands at a price greatly in excess of the real value of said lands, and defendant, relying upon said statements and representations as being true, did pay for said lands all the purchase price thereof, except the said note,

to

was on the tract and the extent thereof, and with full knowledge in that respect the defendant nevertheless proceeded to, and did, purchase the land, after having examined the same. The issue thereby raised is: Whether the defendant relied upon plaintiff's representations, which were admittedly false, or whether he relied upon the result of his personal examination of the condition of the lands. In other words, whether the false representations of the condition of the land, made by the plaintiff, were the proximate efficient cause of defendant's injury and damage. The reply continues further, as follows:

"Plaintiff denies that any representations made by this plaintiff to the defendant as to the quality and condition of said land were false and fraudulent, or that the plaintiff knew that any statements made by him to the defendant regarding said land were false and fraudulent, and denies that the defendant relied upon any statements made by plaintiff, or relied upon the truth of any statements made by plaintiff in regard to said land, or that any statements whatsoever were made by this plaintiff with the intention of inducing the defendant to purchase said land at a price in excess of the value of said land."

The clear effect of these denials is to assert that, while the plaintiff did make the alleged 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 amount 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 had been in possession of the land several months, and thereby had full opportunity to determine the true condition and quality and value of the land. This entirely avoids the issue, and is not responsive thereto. It is surplusage. As a further answer the plaintiff says:

That said land sold by plaintiff to defendant was, at the time of said sale, in every respect of the quality and in the condition in which the same was represented by plaintiff to be, and that the same was of the value paid therefor by defendant."

that the plaintiff did make the alleged statements and representations he is charged with having made, and frequently repeated them prior to the close of the agreement; that the statements made by the plaintiff were, in effect, that the 80 acres of land were all good farming land, and contained no slick, hard, worthless land, and that he would guarantee that it contained no such worthless land; that the defendant was a stranger to the Arizona lands, and so informed plaintiff ; and that defendant relied upon plaintiff's statements and representations made regarding the quality of the land and its worth for farming purposes, of which the defendant informed the plaintiff prior to the time defendant agreed to purchase the land. The defendant further informed the plaintiff that

The last answer is in effect the same as the preceding answers, all of which are simply reasserted in the last. Certainly, the plaintiff's defense to the counterclaim is, as determined from all of the allegations of his 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.

Upon a trial the jury returned a verdict for the defendant in the sum of $115. As an explanation of their verdict, the jury included therein a special finding as follows:

"We find a total damage of $1,286 for defendant and deduct therefrom the plaintiff's claim for $1,171, leaving balance damage of $115.00."

The verdict was recorded, and judgment entered in accordance therewith. From the judgment and from an order refusing a new trial the plaintiff appeals.

The controverted questions litigated on the trial were whether the plaintiff made any statements or representations, relative to the quality of the land involved, and whether in fact the land contained sterile, hard, slick, worthless spots, and, if so, the amount in area of such worthless land contained in such spots.

terms of which contract the defendant agreed to pay therefor $8,800 according to the conditions of the written agreement.

Before

The evidence further tends to show that the defendant took possession of the land and paid $8,000 of the agreed purchase price, agreeably to some subsequent understanding balance of the purchase price, viz. $800, beof the parties; that on January 7, 1914, the came payable; that the defendant made and delivered the note in suit as, and the plaintiff accepted such note in, payment of the said balance of the purchase price. the said note became due, the defendant found, by actual farming, that a great portion of the tract of land is in fact sterile, hard, slick unproductive land, wholly worthless for the purposes of farming for which 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. not 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. | 20 acres; others, 20 acres; still others as 164 P.-21