#### John J. Kuper, appellee, v. Frank Snethen, appellant.

Filed April 17, 1914.

No. 17,571.

Fraud: Damages. In order to sustain an action for fraud and deceit, plaintiff must plead and prove actual damage. Deeeit and injury must concur.

Appeal from the district court for Richardson county: John B. Raper, Judge.

*Reversed and dismissed.*

*J. H. Broady*and *James E. Ley da,*for appellant.

*Reavis & Reavis, contra.*

Fawcett, J.

From a judgment of the district court for Richardson county, in- favor of plaintiff, in an action for fraud and deceit, defendant appeals.

On October 30, 1905, plaintiff purchased from one Kinsloe the west half of section 7, township 1 north, range 27 west of the 6th P. M., in Red Willow county, in this state, for the agreed sum of “$25 per acre for the actual number *35of acres that it will survey out.” The land in controversy, being the west half of section 7, makes it the western boundary of the second row of sections in that township. As is not unusual in such'cases, this half section is what is termed a long half section. When the contract was entered into, plaintiff paid down $50, was to pay $950 additional as soon as an abstract was furnished showing good title in Kinsloe, and $4,000 was to be paid on or before the 1st day of the following March, the balance to be settled for by first mortgage. Before the transfer was made, plaintiff decided that he would pay all cash instead of giving a mortgage for an unpaid portion of the consideration. This plan seems to have been agreeable to all parties concerned. Not having sufficient money himself, he negotiated a loan from the defendant for the balance needed. At that time both the seller and buyer had the idea that the half section contained 331.52 acres, which at the contract price would have amounted to $8,287.50. Having paid the first thousand dollars, in accordance with the terms of the contract, there remained • due, under the then supposition of the parties, $7,287.50. This sum plaintiff delivered to defendant with which to close the deal. Defendant took a draft for that amount with him and proceeded to Danbury, in Red Willow county, where the agent of Kinsloe resided. A question arose as to the number of acres actually in the tract. Kinsloe’s agent, McDonald, advised defendant that a survey had been made. This survey had been made by a surveyor by the name of Hill in 1880. An examination of that survey showed that the half section contained 378 acres. On that basis the draft which defendant had taken with him lacked $1,162.50 of being enough to pay for the acreage which the Hill survey showed plaintiff would be receiving. Thereupon defendant delivered the draft, which he had taken with him, to McDonald, wrote plaintiff advising him that there was more land than they had supposed, and asking him to come to defendant’s bank. Plaintiff and his father met defendant at the bank as requested, and after a conversation, as to the purport of which there is a conflict between the testimony' of *36defendant and that of plaintiff and his father, plaintiff borrowed from defendant the necessary $1,162.50 for six months, his father signing the note with him as surety. The deed was thereupon delivered, and plaintiff went into possession of the land and is now in possession of the same. The note was promptly paid on the date of its maturity.

Plaintiff now charges that he in fact only received 331.52 acres, and that he was induced to pay the additional $1,162.50 through misrepresentations fraudulently and deceitfully made to him at the interview in defendant’s bank, above referred to. Counsel for plaintiff in their brief say: “In fact, if the jury were not able to find from the evidence that the plaintiff had .been damaged by the conduct of defendant, of course that would be the end of the case.” This admission of counsel correctly recognizes the law governing the present action. Regardless of what the defendant may have said to plaintiff about the survey known as the Hill survey, or in reference to an additional acreage, which induced plaintiff to make payment for such additional acreage, if plaintiff in fact received the amount of land for which he actually paid, then he has not been damaged, and his action must fail. Upon this point we are unable to discover any real conflict in the ■evidence. The fact as to the number of acres included in the tract,- which plaintiff obtained, is to be determined from three surveys: One the Hill survey, made in 1880, the one which McDonald had called to the attention of •defendant prior to closing the deal; another made by one Barber a short time prior to the trial in the district court; and the other by one Roland, made on November 30 and December 1 to 7, inclusive, 1910. Before proceeding to give the result of these surveys, it should be stated that the evidence shows that the land was fenced all around, the fence on the east line of the half section having been up, as the witness Dolph states, “since the 80’s,” and that there is a public road along the north, west and south sides, which roads have been in use for many years. That plaintiff actually received the land within these boundaries is not controverted, nor is the fact that plaintiff has *37a good title to the lands within snch boundaries disputed. The simple question, therefore, is, how much land has plaintiff obtained by this transaction? The Hill survey shows that the tract described contains 379 and a fraction acres. The Barber survey shotvs that it contains 388 and a fraction acres. Mr. Roland gives the number of acres as 341.943. The jury returned a verdict in favor of the plaintiff for the difference between 331.52 acres and 378 acres, the number which plaintiff paid for. The trial court, as a condition of overruling defendant’s motion for a new trial, required plaintiff to remit the difference between 331.52 acres and the amount of the Roland survey, 341.943.

The question now is, does the Roland survey raise such a conflict in the evidence as to the number of acres contained' in this tract as to preclude a reversal of the judgment which plaintiff has obtained? It appears from statements of counsel on both sides that the judgment now appealed from was obtained on the third trial of this action. In all three of these trials the verdict of the jury was in favor of plaintiff. It is significant that the trial court set aside the first two verdicts. It is not shown that those verdicts were set aside on account of any errors of law committed by. the court, hence it is a fair inference that the trial court set those verdicts aside because it thought plaintiff was not entitled to them. When the verdict at the last trial was obtained, it is said by counsel that the court stated that, there being some questions of law which it thought the supreme court ought to determine it would overrule the motion, enter judgment upon the verdict, and let the case come to this court for its determination of those questions.. If the Roland survey really raised a conflict in the evidence, so that we could say that it was for the jury to determine from the evidence the number of acres which plaintiff had obtained, we would feel it to be our duty to accept the verdict of the jury and proceed to a determination of the legal questions involved; but we cannot so construe the Roland survey. The Roland survey is set out *in extenso*as exhibit O' in the bill *38of exceptions, and to it is attached a plat made by Mr. Roland. This plat shows the fences and roads surrounding the tract, as above set out; but Mr. Roland did not follow those lines. Being unable to find all of the section corners and quarter-section corners, he seems to have taken the section corner on the western township line, at the southwest corner of the tract in controversy, and run a line between that point and the section comer at the southeast corner of section 12, which would be on the eastern township line of that township, and then to have gone to the south line of the township at the southeast comer of section 31, and run a line between that point and the section corner on the north line of the township* at the northeast comer of section 6, and to have made his survey of this tract by straight lines, thus obtained. This- method assumes that the north and south half section line of section 7 must necessarily be in line with the corresponding half section lines in all sections north and south of section 7 in the township ; that is, that the north and south half-section line is part of a continuous straight line through the township. This arbitrary assumption applies in like manner to the east and west line on the south line of the half section. Clearly, no such presumption will justify changing lines that have been plainly marked by fences and acquiesced in by all parties interested for more *than 20*years. The survey by Roland is therefore worthless, as against the surveys of Hill and Barber. By their surveys the land conveyed to plaintiff by the deed he received is the full amount paid for by him. Hence, he. has not been damaged. This being true, he is not entitled to’ any recovery in this action. The case has been tried three times. *yVe*think it is time the litigation should end.

The judgment of the district court is therefore reversed and plaintiff’s action dismissed.

Reversed and dismissed.