(Oircutt Oourt, D. Minnesota. February f!'l, 1890.)
In an action for false representaj;ions, whereby was induced to buy lana. an instruction that the measure of damages is the between the fair casb Val\160f the land as it actually waS at the time of ·the conveyance, a[ld its fair casbi value at.that time had it been as represented, is erroneous, as the correct . of damages in such case is the between tbe fair cash value of the land and tbeprice paid. Following ,smith v. Bones, 10 Sup. Ct. Rep. 89. B..UIE-APPEU-REVIEW-HARMLES8 ERROR. . Where it appears from the the jury disregarded instruction" and estimated the damages according to the correct rule, the glVlDg of such' struction is harmless error. " ' .
At I-aw. On motion for new trial. Action by Linnie V. Atwate'r against Alonzo J. Whiteman. returned a verdict for plaintiff. , Hamm0n8 Ham'1lW'Tl8, for plaintiff. Cash Williams, for defendant.
SHffiAS,J. This action was brought to recover damages alleged' toi have been caused to plaintiff by reason of certain misrepresentations touching the character and value of some 1,600 acres of pine lands con-: veyedby defendant to plaintift. On the trial before the jury, it appeared that at the time the lands were, conveyed the, defendant was engaged' to; be married to, the daughter of plaintiff;' that plaintiff had about: 88,OOOtha.t she wished to safely invest, so as to secure a good :returnr thereon; that she consulted the' defendant in regard, to' such, investment;, that the defendant represented to her that he had the lal)ds in question; that they ,were cheap at $7.000, and would be a good investment ,for her;' that the:lands had on them good,merchantable pine; that the plaintiff;,; relying.on <.lefendant'srepresentations, took the lands at $6,964. The' jury found that the lands were not in character and quality what they; were rel>fesented to be, and, under the instructions of the Court,returned a. general and special verdict in favor of plaintiff. There was not any' substantial difference in the ·testimony of tbeplaintiff and defendant touching the manner in which the purchase was made, or the statements: of detimdant regarding the Jand. The main dispute in the testimony [ was over the actual character of the land, and the quality, quantity, and value of the,pine timber thereon. In charging the jury upon the rule of damages in case the main issue was found in favor of plaintiff, the' court, iii substance, instructed the jury that they were to find tile fair : cash value the land wou.ld have h'ad, had it in fact been of the character, quality,and value that the defendant represented it to be, and the' faircllsh value of the land as it actually was at the time of anee, and. the difference, between these sums 'Would be the damages which : plaintiff had so.ffered at the time of the conveyance of the lands. to which,: the jw:ymight, in their discretion, add interest aUhe legal ,Naf
exceptions were taken to the instructions, as counsel then deemed the same to be the correct rule on the subject of damages. Upon the motion for new trial, it is suggested that the rule of damages thus given to the jury was.erroneous, in that the declaration if! in tort, and the rule given was not applicable thereto. That this position appears from the ruling of the supreme court in Smith v. is well 13olles,10Sup. Ct. Rep. 39. Neither counsel nor the court had noticed this decision, which had been published but a few days before the trial this cause. No exceptions to the charge were taken by either party, and the case was sent to the jury upon what was then supposed by all to be the correct rule of damages. While detimdant did not except to the .ruling,but, in fact, acquiesced· therein,. and did not therefore lay a foundation for subsequently presenting the question as ground for reversal, I should deem it the duty of the court, even of its own motion, to grant a new trial for this misdirection; uliless it appears that in fact no injury was ctl.used thereby to tbe defehdant. . As already stated, the rule givell the jury directed them to find the fair cash value of the land at the ·time of the deal between the parties, and the fair cash value the same would have had if ,the land had been equal to the representations made by defendant, and the difference would be thest'lm to which plaintiff wl1s>entitled. . Accordirigto the ruling in court sliouldhave instructed the jury to find the fair cash value aBhe land in the condition it actually was when the convey.. auce thereof;was made, and to deduct such valuefrom the sum of money invested by plaintiff in the land, and the difference, with interest added at the discretion of the jury, would be the amount to which plaintiff was entitled. By direction of the court, the jury returned a general verdict, and.special findings. The 'general verdict. was as follows: . "We, the: jury. find verdict for the .plaintiff for four thousandniile hundred 62-100 dollars ($4,924.62,) with interest at the rate of 81lyen per cent. from Nov. 15th, 1882, to Jan'y 7, 1890; amounting to two / thollsand four hundred and seventeen and 90-100 dollars ($2,417.90,) which added to the ·last-named amount, makes a total of $7,342.50." In answer to specific questions SUbmitted, the jury found that the fair cash value of the land at the time of the sale was $1.25 per acre, and that if the land had, at the time of the sale, been equal in quality· and value to what defendant represented it to be, the value thereof would have been $11,598.13. The undisputed evidence shows that there was invested in the land the sum of $6,964 belonging to plaintiff. Deduct from this amount the value of the land at the rate of $1.25 per acre, as found by the jury, and we get the exact sum found by the jury in the the amount of to-wit, $4,924.62. It is there- . fore clear, beyond; question, that the jUl-Y, in estimating the damages, in fact carried out the rule laid down: inSmith v. BoUe8; or, in other words, they found the value of the lands In: the condition they actually were at the. date of. the sale; and, taking the SUto paid by plaintiff as the represebtativ6 of the value that they wouldhiwe had if equal to the representatio.ns made, :tl;1ey deducted the one sum from the other to nscerWn .the
BAMIl-TON ". BALDWIN.
damages caused to plaintiff at the date of the sale, arid then added interest thereto. If a new trial should be granted, the defendant could not hope to change the amount of the verdict unless he could satisfy thejriry that the lands were worth at the date of sale more than $1.25 per acre. This question was a material one at the last trial, and both parties submitted evidence thereon. The jury fixed the value at the figure named, and no showing of error in this regard is made; nor is it claimed that there exists any newly-discovered evidence on this point. There is nothing, therefore, made to appear which would justify the court in assuming that on a new trial any different finding on this question would, be reached. If upon a new trial the findings on this question would be the same, "or substantially so, then the amount of the verdict would not be changed, under the rule of damages laid down in Smith v. RoUes. While, therefore, it is admitted that the rule of damages given the jury was [oneons, it likewise appears that the jury in fact so applied the same as to in the general verdict, the exact result theywQuld have reached bad the correct rule of damages been given them. In fact, therefore; the error caused no injury to d'efendant; and' under such circumstances', and in view of the further fact that the 'court is satisfied thllot the general verdict effectuates justice between the pal"ties, the court is justified, in the exercise of its discretion, in disregarding the admitted error in"the rule of damages given to the jury, and; asa conseqUence, inovertuling the motiop. for new trial.
HAMILTON 'D. BALDWIN. (O'ln'cutt Oowrt, E. D. Missouri, N. D. January 80,1890.)
Co8're-AMOUNT IN CONTROVERSY.
Under Rev. St. U. S. § ll68, which provides that when a plaintift, in a suit originally brought iu the federal court, recovers less than 1500, be shall not recover costs, but may be adjudged topsy costs, where a plaintiff suing on a bill of exchange exceeding 1500 recovers only $400, because of the allowance of a counter-claim for breach of warranty, each party must pay his own costs. '
At Law. On motion to tax costs. Action by George Hamilton against S. H. Baldwin. Harrison Mahan, for plaintiff. Ander80n k Schofield, for defendant.
TBA¥£R, J. The plaintiff in this case, prior to the judiciary act of March 3, 188?" sued the ,defendant as drawer ofa, bill of exchange for ,& sum in excess of $500. The defendant pleaded, by way of counter-claim, that the bill had been given in part payment for a bull sold and delivered by the plaintiff to the defendant with a certain warranty as to soundness and breeding qualities; that the warranty had been broken, and that defendant, in consequence thereof, had sustained damages. The trial of