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subsequently confirmed and approved by the court, and judgment entered accordingly, and a decree entered in favor of John B. Howery, declaring him to be the owner in fee simple of the premises in controversy, and quieting his title thereto, and that the plaintiff had no title, interest. or claim thereto. Το which ruling, order, judgment, and decree of the court the plaintiff duly excepted, and brings the case here for review.

Fulton & Paul and Asa Jones, for plaintiff in error. T. G. Chambers and J. C. Petherbridge, for defendant in error.

HAINOR, J. (after stating the facts). The record presents but one question for consideration, and that is whether the grantor in the deed executed on August 5, 1893, had suflicient mental capacity at that time to make the conveyance. The record discloses that a large volume of evidence was introduced on both sides. The referee, after hearing all the evidence, found every material and controverted fact against the plaintiff, and the trial court confirmed and approved the findings of the referee, and entered judgment accordingly. In our opinion, while the evidence appears to have been conflicting, the referee was fully warranted in finding that the grantor had sufficient mental capacity to execute the deed which is the subject of this controversy, and that the defendant Howery was a bona fide purchaser for value; and, there being sufficient evidence to sustain and uphold the findings of the referee, the law is well settled by this court, as well as the courts of other jurisdictions having similar statutes, that such findings will not be disturbed by the appellate court. In Erisman v. Kerwin, 8. Okl. 92, 56 Pac. 858, this court held that "the findings of the referee must be regarded by the court as having the same force and weight as the verdict of a jury, and should not be disturbed, unless clearly against the weight of the evidence." In Harper v. Hendricks. 49 Kan. 718, 31 Pac. 734, the Supreme Court of Kansas held that: "Where a cause is referred to a referee, with the consent of all the parties, to hear the same, and to make his report of the facts and the law, and such report is afterwards confirmed by the district court. the judgment will not be set aside as against the evidence, although that is greatly conflicting, if there is sufficient to sustain the findings of fact upon which the judgment is rendered." And in Medill v. Snyder, 61 Kan. 15, 58 Pac. 962, 78 Am. St. Rep. 307. it was held that: "The credibility of the witnesses and the probative force of the facts as to testamentary incapacity were for the determination of the trial court, and, it appearing that there is legal evidence to support the findings, these matters are not open for further consideration."

In our opinion, these cases are decisive of the question under consideration. lows that the judgment of the court below must be affirmed.

BURWELL, J., who presided in the court below, not sitting. All the other justices concurring.

(17 Okl. 40)

BOGARD et al. v. SWEET et al. (Supreme Court of Oklahoma. Sept. 6, 1906. CANCELLATION OF INSTRUMENTS-DEED-CONTRACT.

Where S. purchases from the state of Texas land in what is now Greer county, Okl.. and plats the same as a portion of the townsite of Mangum, and thereafter enters into a contract with certain persons for the establishment of a newspaper, wherein it is agreed that such persons shall form a corporation, and run said newspaper and sell S.'s townsite property. and collect certain notes held by him, paying two-thirds of all amounts received to said S.. themselves retaining one-third; and where S.. in pursuance of said contract, as a matter of convenience, executes and delivers to such percorporation is never formed, but the project sons a warranty deed to said land. and such is abandoned, and the deed, together with the notes, returned to S.. held, that S.. in such case. is entitled to a decree canceling such contract, and the deed executed thereunder.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Cancellation of Instruments. §§ 1-6.] (Syllabus by the Court.)

Error from District Court, Greer County; before Justice James K. Beauchamp.

Action by H. C. Sweet and others against J. G. Bogard and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

This was an action commenced in the district court of Greer county by H. C. Sweet and others against J. G. Bogard et al. for the cancellation of a deed to certain town lots in the city of Mangum, Greer county, and a certain contract made in connection therewith. A number of the defendants answered, disclaiming any interest in the property, and, the plaintiff having died, the action was revived in the name of the heirs. Judgment was rendered, canceling the deed and contract as prayed for in the petition. The record discloses that, at a date when Greer county was claimed to be a part of. and under the jurisdiction of, the state of Texas, H. C. Sweet purchased the land in controversy from that state, and, while claiming the same under such title, platted it into town lots which became, and were at the time of the action, a part of the townsite of the city of Mangum. H. C. Sweet, desiring to aid in the upbuilding of a newspaper and the town generally, entered into a contract with the defendants in error, and others, to allow the plaintiffs in error to sell his townsite property, and to collect certain notes which he then had, for property by him theretofore sold, the understanding and agreement being that, in order to facilitate

the business, the plaintiffs in error were to form a corporation for the purpose of running the newspaper and selling the real estate, it being agreed that the corporation should sell the property and collect the notes, and pay to Sweet two-thirds of the amount of the sales, and retain one-third thereof as their commission. As a matter of convenience, in the carrying out of the contract, a deed was made by Sweet and wife to all of the property. Afterwards an attempt was made to form the corporation. There being no law in Texas under which such a corporation could be formed, that portion of the scheme failed, and, as shown by the record, the project was dropped by almost all, if not entirely all, of the parties connected therewith, and the deed, although recorded, was returned to Sweet, together with the notes. Soon after, the decision was rendered by the Supreme Court of the United States, holding that Greer county did not belong to the state of Texas, but was a part of Oklahoma. Sweet, finding that his title from the state of Texas was of no validity, entered the land under act of Congress approved January 18, 1897. c. 62, § 1, 29 Stat. 490 [U. S. Comp. St. 1901, p. 1621]. The deed made by Sweet and wife to the company, however, having been recorded, constituted a cloud upon his title, hence this action to remove the same.

Shartel. Keaton & Wells and J. A. Powers, for plaintiffs in error. Garrett & Garrett and Chas. M. Thacker, for defendants in

error.

FANCOAST, J. (after stating the facts). The contention of the plaintiffs in error is that the contract is one of monetary consideration, that mentioned in the deed being $10, and that the title afterwards acquired by

Sweet from the United States should inure to the benefit of the grantees, and that there is no such case for equity as will warrant the court in canceling the deed and contract. Very elaborate briefs have been filed, and the case has been argued upon numerous different grounds, many of which we think have no application to the facts in the case, or to any rule that should govern the court in its decision. In fact, many of the questions argued have served only to confuse the court in arriving at the real contention in the case.

The evidence abundantly shows that Sweet's purpose in making the contract was to aid in the upbuilding and advertising of the town generally, and the printing of a newspaper. In order to do this, he placed this property in the hands of the parties in order that they might sell the same and receive compensation therefor. By this contract, the parties became his agents, and he was entitled to a reconveyance of all of the unsold property. All the contentions of Sweet were conceded by a large number of

the persons interested. Some few, however, refused to reconvey, and set up claims to the property, but we cannot see upon what theory they can claim to be the owners of the property as against Sweet and his heirs. There were a large number of lots transferred, and a large number of notes placed in the company's hands for collection. The consideration mentioned in the deed is $10, a mere nominal sum. The amount they should receive as compensation was third of the sales and from collections. As testified to by some of the witnesses, they soon found that the expense of collecting the notes would be more than their fees, and they simply abandoned any attempt to carry out the provisions of the contract on their part. One of the parties testified he delivered the deed back to Sweet, all supposing that would be all-sufficient. There is nothing in the case that requires the application of any rule of law other than those which the above statement justifies. There is absolutely no defense to this action, and the judgment of the trial court was certainly the correct one.

Finding no error in the record, the judgment of the court below is affirmed. the Justices concurring.

LONG v. KENDALL.

All

(17 Okl. 70)

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In the sale of real estate, the expression of a mere matter of opinion as to the value thereof. made by the vendor, where the truth of the statement can be as readily determined by the vendee as the vendor, and where no attempt is made to prevent an investigation by the vendee, and where the vendee has an opportunity to investigate, and does not investigate, to determine the correctness of the opinion expressed as to value, such statement so made as to value by the vendor will not be treated as such fraudulent representations as would vitiate the contract, or be a cause for an action for fraud and deceit.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, §§ 40, 52, 53.] 2. SAME-OPPORTUNITY TO INSPECT.

In the sale of property, where the means of knowledge are general and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunities, he will not be heard to say, in impeachment of the contract of sale on the grounds of fraud and deceit, that he was deceived by the vendor's misrepresentations.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48. Vendor and Purchaser, §§ 40-43, 52, 53, 57.1

3. TRIAL-EVIDENCE-INSTRUCTIONS-WITH

DRAWING FROM JURY.

Where, in the trial of a cause, certain evidence is offered, objected to, and the objection overruled, and the evidence permitted to go to the jury, and where certain instructions as to the law are given in favor of the defendant over the objection of the plaintiff, and after the jury have retired to deliberate on .their verdict, and

before a verdict is reached, the court, on reflection, concludes that the evidence was improper and the instructions wrong, and the court calls the jury into open court and by a written instruction withdraws such evidence and such instructions from the jury, if such evidence was improper and such instructions contrary to the law, such action of the court in withdrawing the same from the consideration of the jury will not constitute reversible error.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 130, 568.]

(Syllabus by the Court.)

Appeal from District Court, Payne County; before Justice Jno. H. Burford.

Action by E. B. Kendall against Ben F. Long. Judgment for plaintiff, and defendant brings error. Affirmed.

This case was commenced in the district court of Payne county, Okl. T., on the 22d day of April, 1904, by E. B. Kendall, the defendant in error, against Ben F. Long, the plaintiff in error, to recover damages in the sum of $1,500 on an alleged guaranty in a contract of sale of a stock of merchandise which was made by and between the said E. B. Kendall and Ben F. Long on the 2d day of April, 1904. The part of said contract of sale wherein the plaintiff in the court below claimed that the defendant guarantied said stock of merchandise reads as follows: "The said Ben F. Long agrees with and hereby guarantees to said E. B. Kendall that the said stock of goods mentioned above are of the value of twenty-three hundred dollars ($2,300.00); that the cost mark of said goods is the cost mark representing the original cost of said goods at the wholesale house, and guarantee cost price at actual cost in St. Louis, Mo.; that the stock is not moth-eaten, not damaged in any manner more than an average stock of goods of its class." The said E. B. Kendall, defendant in error, claimed that the invoice of said goods according to the cost mark was only $1,946.12, and that the cost mark on said goods was 20 per cent. in excess of the actual cost of said goods at the wholesale house in St. Louis; that about one-half of said goods were almost worthless by being moth-eaten, rat-eaten, faded, spotted by water and exposure, shelf-worn, discolored, frayed, soiled, broken, and damaged by unskillful handling and packing to the amount of at least 75 per cent. of its original value; and that the same was damaged at least 60 per cent. more than an average stock of its class. To this petition the defendant, Long, plaintiff in error here, in his answer first admits the making of said contract, and claimed that said contract was altered by an executed oral agreement, which was made and entered into on the 4th day of April, two days subsequent to the making of the original contract. By the terms of said oral contract the said Kendall, defendant in error, accepted the stock of goods without invoicing the same, as the same had been shipped in inclosed boxes. The de

fendant in the court below also claimed damages in the sum of $1,650 for false and fraudulent representations which induced him to enter into the contract; that the said Kendall, defendant in error, falsely and fraudulently represented to him that the farm he was getting in exchange for this stock of goods was of great value, and was worth the sum of $3,500, when in truth. and in fact the said farm was not worth to exceed the sum of $2,000. To this answer a reply of general denial was filed. On the trial of the case in the district court, the trial judge permitted the introduction of testimony as to the cross-petition of said Long, showing his damages for the false and fraudulent representations of the said Kendall as to the value of said farm, and instructed the jury on that subject as to the law. After the jury had been out deliberating on their verdict for a number of hours, the trial court called the jury into open court, and by a written instruction withdrew from the consideration of the jury all the testimony as to the statements of Kendall as to the value of the farm, and all instructions given on that subject, to which the defendant, Long, then and there excepted. Afterwards the jury returned a verdict in favor of the plaintiff, Kendall, in the sum of $547. Motion for new trial was made and overruled, and judgment rendered on the verdict, to all of which the defendant excepted, and brings the case here for review.

Charles E. Bush, for plaintiff in error. W. B. Williams and Geo. P. Uhl, for defendant in error.

IRWIN, J. (after stating the facts). The first assignment of error to which the counsel for plaintiff in error cite the court as a cause for a reversal of this case is that the court erred in permitting the witness S. E. McNaul to testify as to the value of the goods when he invoiced the same in 1904, at the town of Agra, Okl. The ground of the objection to the testimony of this witness in the court below was that he had not shown himself competent and qualified to testify on the subject. We think a reference to the case-made at pages 55 and 56 will show that this witness was fully qualified to testify. He there testified to many years' experience in the handling of this kind and character of goods, and that he had been for years a traveling salesman on the road, and is thoroughly familiar with the quality and price of said goods. The objection urged by counsel for plaintiff in error is that, while he has shown a general qualification and general knowledge of this class of goods and their prices, he has not shown that he ever had any experience in the particular locality where this transaction occurred. We do not think this objection is tenable. The question here before the jury

was as to the general depreciation of said goods and the percentage of depreciation of the particular goods in question. This, it seems to us, would not be dependent upon questions of latitude and longitude, and would not depend on any particular locality. We think the depreciation, when measured by the prices, would be the same, whether in Maine or Texas; and this is the opinion given the expert in his testimony on page 62 of the record, when he was asked the question as to whether the depreciation would vary with localities or whether it would be general. The answer is: "The depreciation would be general. It don't make any difference whether it was in Texas or California, in my judgment." And this we think was reasonable. The ques tion was, what was the general depreciation of this stock of goods in connection with the values, disclosed in the evidence? That depreciation was asked for, based up on a percentage as to the cost price, and while the cost price might be different in different localities, where the estimate is based upon the percentage of the cost price, the variance in the price would make no difference. We think there was no error in ditting the testimony of this witness.

The second assignment of error is that the court erred in excluding the testimony in reference to the execution of the oral contract that changed the written contract which was made by and between plaintiff and defendant, and in support of this counsel cite section 7. art. 5. c. 16, of the Stattes of 1893, which provides as follows: "A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise." Now we do not think this assignment of error is well taken. We have examined the entire record, and so far as we can find there is no express exclusion of any testimony upon this point. At pages 131, 132, and 133 the defendant in the court below was permitted, without objection, to testify to the entire transaction from the time the goods were sold to the plaintiff up to the time of the delivery. He goes on and tells all that took place, and the details of the transaction as to the sale of the goods and the delivery of the deed and money in escrow, and the delivery of the goods, and does not there speak of any subsequent executed oral contract. Whether the evidence is labeled "evidence as to executed oral contract." or by whatever name it is known, whatever evidence there was on this subject, known to the defendant. went to the jury in his testimony, and if there is anywhere in the record that the court has sustained an objection, or excluded testimony upon the question of this subsequent orally executed contract, so-called by plaintiff in error, we are unable to discover it, and counsel in their brief have not seen fit to point it out to us,

and we do not think it is any part of the business of the court to minutely and carefully scrutinize every word and syllable in an entire and voluminous case-made, to discover errors which counsel claim the record contains, which they do not deem advisable to particularly point out to us.

The third assignment of error is that the court erred in giving instruction No. 11 to the jury; that is, the instruction which was given to the jury after they had been for some time deliberating on a verdict, and before they arrived at a conclusion, withdrawing from their consideration the evidence and instructions relating to the question of the representations made by Kendall of the value of the farm traded to Long. Now the only question to be determined by this court, in deciding whether the action of the district court in this particular was right, is to determine whether the facts disclosed by this evidence was such a fraud as would vitiate the contract, or would entitle the party to damages for fraud and deceit. The representations, as having been shown by the answer of the defendant as having been made by Kendall, were at best mere expressions of opinion. According to the statements in the answer, Kendall represented to the defendant, Long, that the farm he was trading him was worth $3,500. This would be a mere matter of opinion. There is nothing in the record to show but what Long was just as familiar with the land as Kendall-had just as good an opportunity to know its value. The record shows nothing that would indicate any attempt on the part of Kendall to prevent Long from investigating as to the value of the land, and we take the true rule to be that where the opportunities for investigation are equal between the parties, where one has the same opportunity to know the facts as the other and to determine the correctness of the opinion as to the value expressed, mere mistakes or misstatements as to the value will not amount to a warranty, or be a cause for rescinding the sale on the ground of fraud, or entitle the party to bring an action for fraud and deceit.

Judge Wood, in his latest edition of Addison on Torts (vol. 2, p. 419, § 1185), lays down the rule that "where the real quality of the thing is an object of sense obvious to ordinary intelligence, and the parties making and receiving the representation have equal knowledge or means of acquiring information, and the correctness or incorrectness of the representation may be ascertained by the party interested in knowing the truth, by the exercise of ordinary inquiry and diligence, and the representation is not made for the purpose of throwing the latter off his guard and preventing him from making those inquiries and examinations which every prudent person ought to make, there is no warranty of the person's knowledge of the

** *

truth of his representation, or of the fact being as it is stated to be. * The same author (at page 420, § 1186) says: "When the representation is made concerning something which is mere matter of opinion, which every man can exercise his own judgment upon and inquire about, it is the plaintiff's own fault if he suffers himself to be deceived. If the person giving his opinion or expressing his belief, does not possess any exclusive means of knowledge, and merely says that which he think to be true, there is no fraud, however erroneous may be the statement he has made. If. therefore, a defendant, having reason to believe and actually believing a particular fact to be true, has represented it as such to the plaintiff, he is not, as we have seen, liable to an action merely because it turns out that he was mistaken and his representation was false. ** *** The Supreme Court of the United States, in the case of Slaughter's Administrator v. Gerson, reported in 13 Wall. 379, 20 L. Ed. 627, says, in the syllabus: "(1) The misrepresentation which will vitiate a contract of sale, and prevent a court of equity from aiding its enforcement, must relate to a material matter constituting an inducement to the contract, and respecting which the complaining party did not possess at hand the means of knowledge; and it must be a misrepresentation upon which he relied, and by which he was actually misled to his injury. (2) Where the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunities, he will not be heard to say, in impeachment of the contract of sale, that he was deceived by the vendor's misrepresentations." And in the body of the opinion Mr. Justice Field, speaking for the court on page 383 of the opinion, used this language: "A court of equity will not undertake, any more than a court of law, to relieve a party from the consequences of his own inattention and carelessness. Where the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunities, he will not be heard to say that he has been deceived by the vendor's misrepresentations. If. having eyes, he will not see matters directly before them, where no concealment is made or attempted, he will not be entitled to favorable consideration when he complains that he has suffered from his own voluntary blindness, and bas been misled by overconfidence in the statements of another."

Mr. Story, in his excellent work on Equity Jurisprudence (volume 1 [3d. Ed.] §§ 199. 200), lays down this rule: "Where a party can protect himself by ordinary care and prudence, he must do so; and if, with full means of knowledge, being equally able to 87 P.-43

judge of a matter for himself, he relies upon the representations of another, then, should he stand on equal footing, without exercising the means of knowledge open to him, neither courts of law nor courts of equity will relieve him from the effect of such folly."

In the case of Miller v. Craig, reported in 36 III. 109, the Supreme Court of Illinois, says: "When parties are negotiating for the purchase and sale of property, real or personal, each party has a right to exalt the value of his own property to the highest point his antagonist's credulity may bear, and depreciate that of his opponent. If there is opportunity to examine the property, such boastful assertions, or exaggerated descriptions cannot be considered as amounting to fraudulent representation or deceit."

Now, decided by the rule enunciated by these authorities, this portion of the answer of the defendant in the court below did not state any cause of defense, and, had a demurrer been filed thereto, it would undoubtedly have been sustained by the court. This being true, any evidence offered to prove that issue, when objected to, was not admissible, and it was error for the court to receive such testimony. It was also error for the court to instruct the jury upon this theory of defense, and we think that, at any time during the trial and before final judgment that such error was discovered by the trial court, it was his duty to correct that error by withdrawing that issue from the consideration of the jury: such a course being preferable to allowing the cause, after the discovery of such error by the court, to proceed to final judgment, and then seeking to rectify the error by granting a motion for new trial. This latter course would cause unnecessary costs and useless expense to both parties. Hence we think the court was right in taking the course he did, and withdrawing the entire matter from the consideration of the jury before they had arrived at a verdict; and, the court having done so by a proper instruction in open court, we do not think it is any cause for a reversal of this cause.

Counsel for defendant in error devote a considerable portion of their brief to a discussion of the act of the territorial Legislature permitting amendments to the casemade, and we think that to some extent the contention of counsel is correct, and that his criticism is worthy of attention; but in that connection we desire to call the attention of the writer of defendant in error's brief to certain paragraphs in his own statement. In the course of his brief, in sustaining certain positions which he assumes, he cites certain cases, without giving the court any light as to where such cases may be found. Illustrative of this, we call attention to his brief at page 8, where he cites the case of Bessingham v. Syck et al., and then quotes from that authority. Also, on page 9,

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