Stirnus v. Adams

BARDIN, J.,

pro

tem.

In this action the plaintiff filed his complaint praying for judgment against the defendants in the sum of $1,000 as money had and received by them to and for the use of the plaintiff. The defendants admitted receipt of the sum stated but denied any liability to plaintiff upon the -ground that this sum represented the amount of a deposit paid upon a certain contract of sale of real property belonging to defendant Adams, and which defendant Lyon, as agent, had sold to the plaintiff, and which sum it was agreed would be forfeited by the purchaser (one-half thereof to each of defendants), if he failed to complete the terms of the agreement of sale. The real property referred to contained approximately nineteen acres of land, practically all of which was planted as an orchard.

The defendant Lyon filed a cross-complaint alleging, in effect, among other things, the promise of the plaintiff to pay to Lyon, in the event that plaintiff breached his contract of purchase, the further sum of $1,250 as a broker’s commission for negotiating the sale. The plaintiff answered the cross-complaint, alleging that the contract was procured by reason of the fraudulent representations of the defendants as to the quality of the said orchard. Upon the issues in this manner framed the case was tried and judgment followed in favor of the plaintiff.

The court found upon the issues of fraud substantially as follows: That prior to the signing of the agreement for the

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purchase of said real property, the defendants falsely and fraudulently represented to plaintiff that the trees in said orchard were about fifteen years old, whereas, the same were in fact twenty-five to thirty years old; that prior to such signing said Lyon, as the agent of said Adams, falsely and fraudulently represented to plaintiff that said orchard was a first-class orchard, in the best possible condition, and that there was nothing wrong with it; that, in fact, the trees in said orchard were badly sunburnt, due to insufficient moisture and to long-continued failure to prevent or obviate the effects of such sunburn; that a large number of the trees had been seriously injured by the pest known as the “peach-borer”; that said orchard was largely infected with oak-root fungus, and with black-knot or crown-gall; that the trees in said orchard were stunted and under-developed and that said orchard was not a first-class orchard, or even an average orchard, but was in a poor, diseased, and infected condition; that said representations were false and untrue, and were known by defendants so to be, and were so made to induce plaintiff’s execution of said agreement. And it was further found that “plaintiff was entirely without experience in regard to orchards, and in agreeing to purchase said property, relied solely upon the aforesaid misrepresentations of defendant.”