Cohen v. Stockton

THE COURT.

This is an appeal from a judgment against defendant in an action to recover ten thousand dollars, paid by the plaintiff to the defendant upon a contract for the sale and purchase of a mine, which the plaintiff alleges he was induced to agree to purchase by false and fraudulent representations made to him by the defendant.

The sufficiency of the evidence to sustain the verdict of the jury could not well be nor is it questioned upon the appeal. The defendant relies for a reversal of the judgment against him on the rejection by the trial court of certain evidence, and also on the ground that the court erred in giving and in refusing certain instructions to the jury.

While the record is voluminous, the questions presented are not many, nor are they difficult of solution.

The substance of the complaint is as follows: In July, 1911, the parties to this action entered into an agreement under the terms of which the defendant, in consideration of ten thousand dollars, paid to him, and other payments to be subsequently made, agreed to sell and convey to the plaintiff certain mining property situated in the state of Nevada. That, in order to induce plaintiff to enter into the contract, and to make the said first payment of ten thousand dollars, the defendant, shortly prior to the execution of the contract and to the payment of the said sum of money, falsely told and represented to plaintiff, and also caused one P. E. O’Brien to falsely tell and represent to plaintiff, and to one Charles J. Lyser, an employee and representative of plaintiff, the following things: (a) That at a certain point on the three hundred and twenty-five-foot level in the mine or claim of the Black Eagle Gold Mining Company there had been encountered a ledge or vein of gold-bearing ore eight feet in depth, bearing gold to the extent and value of twenty-one dollars per ton; whereas in truth and in fact there was no vein or ledge of any

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size carrying values in gold or any other material, (h) That in the cross-cut in said level before the ledge or vein had been encountered, gold-bearing rock had been found which had assayed in value from five dollars to twenty-one dollars per ton. It is charged that this statement was untrue and in fact utterly false.