Perry v. Ayers

SLOSS, J.

Plaintiff appeals from a judgment in favor of defendant and from an order denying a motion for new trial.

The action is one to recover damages for deceit. The complaint alleges that in April, 1907, the defendant owned a one-fourth interest in a.n agreement under which he and others had a right to purchase certain mining property known as the Crystalline Mine, and that the defendant was in charge of the development of said mine. It is alleged that on the twenty-ninth day of April, 1907, the defendant represented to the plaintiff that a large and valuable vein of ore over ten feet in thickness and carrying average values of five or six dollars a ton in gold had been discovered and opened up in said mine and that said vein would produce enough money to pay the purchase price of the property, and that the defendant and his associates would acquire said mine by paying the purchase price named in the agreement which they held. The complaint sets forth further representations that the property was of the value of one hundred and fifty thousand dollars and that

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defendant was contemplating and arranging for the incorporation of a company to take over the mine under said agreement of sale. The defendant, it is alleged, agreed to sell to plaintiff one half of the interest which he would have in said corporation, which would be one quarter of the capital stock, for the sum of five thousand dollars and further agreed that upon the incorporation of said company stock would be issued to plaintiff for his interest so purchased. The complaint alleges that plaintiff, believing said representations and relying wholly thereon, paid over to defendant the sum of three thousand dollars on account thereof on said twenty-ninth day of April, 1907. It is then alleged that each of these representations was false and was made by defendant with knowledge of its falsity and with the intent to deceive and defraud the plain tiff; that shortly thereafter the mine was closed down and the contract for the purchase of the property forfeited; that no company was ever incorporated to take over said mine, and no stock was ever issued to plaintiff, and, that no consideration of any nature has been received by plaintiff for the money so paid.

The answer admits the allegations concerning the nature of defendant’s interest in the mine; admits the making of some of the representations alleged and denies the making of others; alleges that all of said representations were true to the best of defendant’s judgment and belief; denies that any representations made by defendant to plaintiff were false when made, or that they were known to defendant to be false, or were made with any intent to deceive plaintiff. It admits that the mine was abandoned and that no corporation was formed and alleges that the reason for this was that the development work proved that said mine could not be made to pay. The answer denies that the plaintiff received no consideration of any nature for his money and alleges that he received full and adequate consideration for all money paid by him. There is an affirmative defense averring that on January 26, 1909, all claims and demands of plaintiff against defendant were settled by the payment of the sum of $1802 to plaintiff by defendant. In addition to what has been stated, the answer denies that the agreement between the parties was as averred in the complaint, and alleges that their real agreement was for a sale by defendant to plaintiff of