called without the consent of counsel. At the same time the attorney for the defendant should have bee. in attendance at the term of court, prepared, when the case was reached, either to dispose of it by trial, or to move for its continuance, or to take such steps as might be required. In view of all the circumstances of the case, I think terms should be imposed upon counsel, and the verdict set aside. The verdict, will be set aside on payment of the taxable costs of the term.
and others v.
June Term, 1883.)
(Circuit Oourt, D. Minnesota.
CO)IPnO)rTSE AS CONSIDERATION FOR DEED-SUIT FOR BREACH OF CmiTRACTEVIDEXCE.
MILLER, Justice, (cTulrging jury.) case before you is not a very complicated one, and I hope you will have very little difficulty in arriving o.t a speedy and ootisfactory conclusion about it. It is a very ordinary action for false representations in regard to a contract for a sale of property. Whether too representations were made or not, and whether they were false or not, is for you to detern1ine. I will lay down some of the propositions of law that are applicable to such a case, which ille long experience of courts has found to be universal in determining eases of this character. The first thmg I bave to say to you is that this transaction between these parties, in which the land was conveyed by the defendant to the plaintiff, stands about the same as if it had been bought and paid for at the time. Not that it stands as if it was paid for by $8,000 in money, but as if it was bought for any agreed sum that would be settled on. This settlement and compromise of a litigated question or of matters in litigation which have not been finished or ended is a valid consideration for the conveyance of the land; and it is immaterial in that view whether the defendant had actually a good
BARTLETT V. SMITH.
or not, because there is always a question which Htill remains to be tried when a lawsuit is compromised, and it is to avoid the trial of that issue that the parties did compromise, and the parties had a right to make such a compromise and settle their difficulties, and in my judgment the compromise of a lawsuit is a most meritorious consideration for a promise to pay money. The question, then, for you to consider and determine, is, did Mr. Smith make certain representation to Mr. Mohr, including the letter which was read, in which he said, "I will give you good land?" Did he make such representations in regard to the nature and the character and value of that land so that 1111'. Mohr had a right to rely on them. and which were false and deceptive representations? In the first place, it must appear to you that the representations were made, and you are to determine that from the testimony, and as to what these representations were. Contrary to the view of defendant's counsel here I permitted questions as to the value of the land and the defendant's statement of the value of that land, because, while I admit that where the only question in the case is, was the land of the value that the defendant represented it to be? and where it was apparent that the value as he represented it was a mere matter of opinion, that such a thing alone would not be a foundation for, and would not justify, an action. But where other representations are made as to the qualit.y and character and nature of the property which is subject of the litigation, and there is added to that a statement of its value by the party selling, I think that can go in as one of the representations constituting a fraud, if there had been a fraud in it. What reprecentations, therefore, were made by Mr. Smith in regard to this tract of land, as to its character, its quality, and its value, you are to consider. The next thing to be considered is, did lUI'. 1\1ohr rely on these representations when he made this contract? Because it is not every representation that a man makes in the sale of property that he is responsible for, and must answer for in damages. For instance, if he should say of a horse which he was selling, "This horse is 16 hands high," and the horse was present, and the other party had an opportunity of seeing the horse, and could see the mistake or falsehood, in that case the seller would not be accountable, because the buyer could have seen for himself. And so in a great many things, where the party to whom the representations are made could have an opportunity of examining for himself, it is his duty to examine for himself, and not to rely on what the other party says. There are many cases, and it is for you to say if this is one of them, in which the party makes these representations, and the other party does not seek to verify them at all. It may be too far away, or he may know nothing of the character of the thing to be sold. He may take the man at his word and say, "You say this property is so and so; you say in regard to this land that it is good arable land, and that it is good
'meadow land, and that it is worth ten to fifteen or twenty dollars an acre, and I take your word for it, and take your value of it upon that representation." A party has a right to do that. If the seiler makes representations as to the quality and character of the article he is selling, and the buyer bnys upon that representation, relying upon the statements of the seller, then the seller is responsible for the truth of wbathe says. It is not necessary that it should be absolutely true, but it is necessary that the seller should believe it to be true. If he states that he thinks it to be so and so, and it turns out to be otherwise, he is not responsible. If it is not done with an intent to deceive the party buying, and the seller does not try to deceive him with false representations, he is not responsible. If he. says it is so and so, and that he believes it to be so, then he is not responsible, even if it turns out to be otherwise. So the things that you are to inquire into are: What representations did :Mr. Smith make? Were these representations as to the value of the land the main feature that induced Mr. Mohr to make this contract? Did Mr. Mohr mak.e the contract. relying solely and exclusively upon those representations? Were these represellta tions correct or incorrect? Were they trne or were they untrue? Were they false or were they sound? If they were false, did Ur. Smith know or believe them to be false? Did he intend to deceive? These are the criteria by which you will determine this question. If you find from the evidence that Mr. Smith did not intend to deceive 1\11'. Uohr in this matter,-did not intelJd to make any false representations in regard to the character and value of this property; if you fwd that he believed the suustance of what he said in a general way,-:"'believed what he said about that land; and if you believe that the property is about as valuulJle as Mr. Smith led Mr. Mohr to believe it was,-(one of the witnesses, 1\lr. Whitford, says he listened to all this transaction, and he said he got the impression from 1\lr. Smith's statement that the land was worth $10 or $12 an acre,-1 commend that statement to you as that of a man who heard the conversation,-and he came to that conclusion. 1\lr. :Mohr said Mr. Smith represented it to be worth $20. 1\11'. Smith said he gave him the impression it was worth $10, and :\11'. Whitford said, from all that \las said about it, the impression that it left upon his mind was it was worth $10 or $12 an acre,)-if it was $10 or $12 an acre, or pretty near that sum, there is no fraud or deception Of wfong about that; that is, if that is what ),11'. Smith said, and what he intended to convey. If, on the other hanel, this lanel is utterly worthless, as some of the witnesses say it is, and ),11'. Smith represented it to be worth S10 or S15 an acre, and if he made those renresentations, intending to get the better of Mohr, he ought made responsible. If he is responsible, for what is he responsible? The price put in the deed has nothing todo it. The question is, if you _find anything at all against Mr. Smith, it will be the difference be-
WATERBURY V. NEW YORK C. & H. R. R. CO.
tween the value of the land as he represented it to be, and the value of the land as you find it to be under the evidence. You may never come to that. I do not know that you will. But if yOll come to the question of damages,-as to how much the damages should be,-the rule is, you are to consider how much the property is worth; if it was just as Smith stated it to be, and what it was wortb, as yOll find it to be nnder all the testimony in the case.
C. & H. R. R. Co.
May 4, 1883.)
(Circuit Court, N. D. New York.
CARRIER OF PASSENGERS-RIDHW ON ENGINE OF CATTLE Tn.UN-VIOLATION OF ORDEUS-QUESTION FOR JURY.
"Where a drover riding on an engine, in an action for negligence of the railroad company causing an injury to him, claims that he was riding on the engine by the consen t of thc engineer to look after his cattle, as was customary, and the defendant claims that it was contrary to orders for anybody to ride on an cngine, the question to be left to the jury to determine is whether the defendant had, notwithstanding its rules for the government of its employes, by its conduct held out its employes to the plaintiff as authorized under the circumstances to consent to his being carried on the train with his cattle.
SAUE-PREsmIPTlOx-REBUTTAL BY CmcmlsTANcES.
The presumption of law is that persons riding upon trains of a railro[l,l carrier whieh are palpably not designed for the transportation of persons, are not la wfnlly there, and if they are permitted to he there hy the consent of the carrier's employes, the presumption is against the authority of the employes to bind the carrier by such consent. But such presumption may he overthro,,'n by special circumstances; and where the railroad company would derive a benelit from the presence of drovers upon its cattle trains, and may have allo,Yed its employes in charge of snch trains to invite or permit drovers to accompany their cattle, the presumption agaim:t a license to the person thns carried may be overthrown.
S.UIE-DUTY TO OARRY 8AFELy-GRATUITIOUS CARRIAGE.
The right which a passenger by railway has to be carried i'afely, does not depend on his having made a contract, hut the fact of his being there creates a duty on the part of the ('ompany to carry him safely. It suffices to enable him to maintain an action for negligence if he was being carried by the railro"d company voluntarily, although gratuitously, and as a mere matter of favor to him.
)Iotion for new trial.
Parker '('Countryman, for plaintiff. Hale ((. Bulkley and Fral1k Loomis, for defendant.
WALLACE, J. The plaintiff sued for personal injuries sustained, as he alleged, by the negligence of the defendant, and, haying recoyered a ,erdict, the defendant moyes for a new trial. The plaintiff "'as riding on !in engine of the defendant, when, in consequence of a placed switch, it was thrown from the track and he was injured: There was no eyidence on the trial of any express contract between the parties creating the relation of passenger and carrier, but it ap-