replied: "There was something said about the dividend, but don't remember what it was." Later on in the testimony appellant claimed that Walton told him the electric light stock was a dividend-paying stock, and that he traded for it on the faith of appellee's words. Appellant admits that appellee declined to purchase the farm unless appellant would take in the electric light stock as a payment of $3,190 cash. He also admits that he was in Campbellsville nearly every day from January 1st up until the time the sale was consummated on January 11th. The only evidence which appellant introduced as to the worthlessness of the stock is the fact that he offered it at public sale, accompanied by the announcement that appellee had a lien on the stock to the extent of $2,175, and no one present would make a bid.

Appellee testified that he refused to buy the farm unless appellant would take in the fifty-eight shares of electric light stock at $1.10 on the dollar. Upon being asked what dividend the stock paid, he remarked that the stock did not pay any dividend in money; that the company was indebted and that the profit went to reduce the debt. He also said that the stock was good if the company was properly managed, but he did not like the management. He referred James Bowen, to whom these remarks were addressed and who was assisting in conducting the negotiations for appellant, to Dr. J. L. Atkinson, president, and B. S. Kinkart, the business manager of the electric light company. Appellant was present during this conversation and heard what was said. Appellee denied that he represented the stock as a good, dividend-paying stock. Other witnesses testified that the stock had sold at from 103 to 106, two sales being made at these quotations. During the year prior to the time the trade was made, the stock had earned from nine to ten per cent, but no dividend was paid. The capital stock of the company amounted to $10,000; its indebtedness amounted to about the same sum; but the plant was worth around $25,000. One witness also testified that appellant came to him and told him that he had found out that the stock was all right, and asked him to see his brothers and induce them to make the sale.

Even if appellant's account of the conversation he had with appellee is correct, it shows that appellee simply entertained a good opinion of the stock in question. When we consider the fact that appellant first stated

that he did not remember what appellee said about the dividends on the stock, but subsequently stated that he represented that it was a good, dividend-paying stock, in connection with appellee's statement that the stock as a matter of fact was not paying a dividend, but that the earnings were being devoted to the payment of the company's indebtedness, we are inclined to the opinion that appellee made no false representations to the effect that the stock was paying a dividend.

Moreover, appellant and appellee were two farmers and were dealing at arm's lengths. There was nothing in the relations which they sustained to each other which required appellee to go into details as to the amount and character of business done by the electric light company and as to the value of its stock. Nor did he in any way prevent appellant from making an investigation in his own behalf. When we consider the fact that there is testimony tending to show that appellant stated to one witness that he had found out that the stock was all right and asked witness to see his brothers and induce them to make the sale, we conclude that he was acting upon his own judgment in closing the transaction.

Furthermore, there is no proof that the stock was, or is, worthless. The fact that no one bid upon it at the time it was offered for sale, is only evidence of the fact that no one present was willing to bid more than seventyfive cents on the dollar for the stock; that it was reasonably worth that amount is shown by the fact that appellee loaned that sum upon the stock as collateral security.

Moreover, if the plant was worth $25,000, as the evidence tends to show, and was only in debt to the extent of $10,000; and if the capital stock was only $10,000, and the corporation was earning more than sufficient to pay the interest on the debt, these circumstances would tend to show that the stock had a substantial value.

Upon the whole case, we conclude that appellant failed to show, either that appellee was guilty of any fraud, or that the stock was practically worthless. Judgment affirmed.

Weikel v. Sterns, et al.

(Decided March 2, 1911.)

Appeal from Jefferson Circuit Court.
(Common Pleas Branch, Third Division).

Where a vendor of real estate knows that it is to be used by the purchaser for residence purposes, and that conditions exist which, a man of ordinary prudence would know, render the property unfit for a residence, he is liable to an action for damages for fraud where he fails to disclose the condition, although he may not in fact intend to commit a fraud upon the purchaser.

HARRISON & HARRISON for appellant.

EDWARDS, OGDEN & PEAK for appellees.

OPINION OF THE COURT BY CHIEF JUSTICE HOBSONAffirming.

W. A. Sterns and wife bought a house and lot in Louisville from Fred Weikel. They afterwards brought this suit against him to recover damages for deceit in the sale of the property. On the trial of the case in the circuit court there was a verdict and judgment in their favor for $250. Weikel appeals.

Practically the only question made on the appeal is that the court should have peremptorily instructed the jury to find for the defendant under the evidence. The facts shown are these: Weikel owned a lot at the corner of Park and Frankfort avenues in the city of Louisville. On the front of the lot he built a drug store with a residence flat overhead. On the rear of the lot he had a stable. The sewage from the drug store and the flat overhead was run into a pit which he had dug at the back of the lot under the stable. After some years he tore the stable away, and erected where it stood a dwelling house; and this was the property which he sold Sterns about the time the house was finished, and before it had been occupied. The pit referred to when he tore the stable away, was full. He had it cleaned out about a foot below the level of the cellar which he dug, leaving about eight feet of the pit full of sewage, in the middle of the cellar; and this he covered over with clay, the pipe from the drug store building still emptying into the pit. In this condition of things, he sold the property to Sterns telling him nothing of the pit or the pipe running into it, which was

Vol. 142-17

covered up with the clay which he had put over it. The tenant which Sterns put in the property vacated it in two weeks on account of the odor, and he was unable to get any other tenant to move into the house. Finally, after some months he discovered the existence of the pit, had it cleaned out, had the pipe disconnected, and had the pit filled with clay. After this he had no trouble, and this action was brought for the damages he had sustained in the meantime.

It is insisted for Weikel that an action for deceit does not lie unless the fraud was knowingly practiced or there was an intentional suppression of facts where the defendant was in duty bound to disclose them. (Kerr on Frauds, 382-384; Shive v. Merrit, 31 R., 978.) But a man must be presumed to intend the necessary consequences of his own voluntary act. The voluntary doing of an act which necessarily results in injury to another where the party knows the facts, and had reason to know that the injury will result, will sustain an action for fraud. (20 Cyc., 2738.) It is not necessary that a misrepresentation in words be made. The house which Weikel had built was built for a residence. He knew when he sold it to Sterns that Sterns was buying it to rent to another as a residence. He knew the pit full of sewage was in the cellar, and a reasonable man situated as he was must have known that such a pit with a pipe running into it carrying in water and more sewage every day in a cellar under a house, would render that house unfit for a residence. To sell such a house without disclosing the situation, when the purchaser would have no means of knowing the facts from the pit being covered up as it was, was to practice a fraud upon him. It is insisted that Weikel acted in good faith and without knowledge of the real condition of things, but the proof shows that he knew enough facts to put a reasonable man on notice; and when he sold an innocent purchaser the house, causing him a loss by reason of the concealment of the facts, the loss should fall on him and not on the purchaser. We rest our judgment on the ground that the facts which he knew were sufficient to apprise a man of ordinary prudence of the truth, and to impose upon him the duty to inform the purchaser of the situation which he had concealed from him. (Condor v. Pickett, 78 Ala., 331; Caldwell v. McClelland, 3 Sneed (Tenn.), 150; Minor v. Sharon, 112 Mass., 477.)

Judgment affirmed.

Chesapeake & Ohio Railway Co. v. Stein.

(Decided March 2, 1911.)

Appeal from Lewis Circuit Court.

9

1. Nuisance Measure of Damages.-Where the improvement that produces the injury or nuisance complained of is permanent, the measure of damage is the depreciation in the market value of the property; but if the improvement is temporary in its character and such a one as that it may be readily remedied, removed or abated, the measure of damage is the depreciation in the rental value of the property, if it be rented out, or, if it is occupied by the owner, the damage to its use and occupation.

2.

3.

Limitation-Successive Actions. In actions to recover damages for a permanent improvement that is a nuisance, the action 13 barred in five years from the time the improvement is made, and all damages for past, present or future injury must be recovered in cne action. But, where the thing that creates the nuisance is temporary in its character,, successive actions may be brought for the injury caused by it.

Recovery for Temporary Nuisance to Time of Trial-Practice.When an action is brought to recover damages for a temporary nuisance, and it is in existence when a trial is had, the plaintiff should file an amended petition setting out the continuance of the nuisance and may recover damages up to the date of the trial. But if he fails to file an amendment, and the instructions do not confire the jury to any particular time, their verdict will be treated as a finding of damages up to the date of the verdict. 4. Witnesses-Re-examination Of-Practice.-If during the trial the judge rules that a certain line of examination is proper and the witnesses are examined in accordance with his ruling, and he afterwards discovers that his ruling was erroneous, the witnesses may be re-introduced and examined along the lines held by the judge to be proper.

WORTHINGTON, COCHRAN & BROWNING for appellant.

DINKLE & PRITCHARD, W. C. HALBERT and SAMUEL PUGH for appellee.

OPINION OF THE COURT BY JUDGE CARROLL Affirming.

This is the second appeal of this case. The opinion on the former appeal may be found in 132 Ky., 322. The facts are so fully stated in that opinion that it seems unnecessary to repeat them here. Upon a return of the case, a re-trial was had and a verdict returned in favor of the appellee for $2,135. From the judgment upon the verdict this appeal is prosecuted.