Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-10
Gerking V. LaldIaW, MuItnOmah
County.

A. Laidlaw, respondent Appeal from
the circuit court for Multnomah
county. Hon. John B. Cleland, Judge.
Argued and submitted March Is. 1911.
w. P. Myers and E. B. Dufur, for ap-
pellant. A. E. Clark, for respondent.
Moore, j.. Affirmed.
This is an action by ]. N. B. Gerk-
ing against w. A. Laidlaw to recover
damages alleged to have been sus-
tanned by false and fraudulent repre-
sentations respecting the title to real
property. The complaint alleges in
effect the incorporation of the Col
umbia Southern Irrigation Company,
the business in which it was engaged,
and that about December IL, 1904,
Laidlaw represented to plaintiff that
the corporation possessed sufficient
financial ability and intended to con-
struct and operate an extensive sys-
tenn OF irrigation and to supply water
for that purpose; that it was the
owner in fee of 800 acres of land,
describing the premises, in sections
z and 8, township 16 south, range 12
cast; that relying on such represen-
tatlons plaintiff was induced to enter
into contract with the corporation
to purchase the land for $6,40O, on
account of which he had paid $256O
and had given his promissory note
for the remainder, upon which he
had paid as interest, $25O40; that
such representations were falsely
and fraudulently made, setting out
wherein the alleged declarations
were untrue; that relying on such
statements plaintiff had made valua-
BILE improvements on the land which
with the water right, were reasona-
bly, worth $4,000; that on May Is,
1906, he discovered that the represen-
tations were false in that the title to
the land was held by the United
States, whereupon he demanded of
the corporation and of it's successor,
the Columbia Southern Irrigating
Company, return of the money so
paid and cancellation and surren-
der of the notes, but they refused to
comply; and having exhausted his
right to acquire government land
plaintiff lost possession Of the prem
ises and of the water right to his
damage in the sum of $4,000, for
which judgment was demanded.
The answer denies the material
averments Of the complaint and al
leges in substance that on December
IL, 1904, plaintiff entered into con-
tract with the Columbia Southern
Irrigation Company whereby it was
to furnish water to irrigate $50 acres
of land, including the premises de-
scribed in the complaint; that such
lands then were desert claims on
which filings, but not final proofs,
had been made, all Of which plaintiff
wellhmew before signing the agree
ment; that the contract provided the
corporation was to cause such desert
claims to be assigned to plaintiff who
was to secure from the general gov
ernment title to the premises; that
he failed to make any proof as to the
premises described in the complaint,
but conspiring with his son Grover,
the latter instituted contest which
resulted in a cancellation of the
desert entry of the claimant, from
whom the corporation expected to
secure the title, and the contestant
now holds possession of the land.
The reply having put in issue the
allegations of new matter in the an
swer the cause was tried, whereupon
the jury, pursuant to directions, re-
turned verdict for defendant, and
plaintiff appeals from the resulting
judgment.
Moor, j.: AS the action of the
court in directing the verdict is chal- |
lenged an examination of the testi-
mony becomes essential. The admit
ted facts are that on December 3.
1904, upon payment of 1000 to j. Fl.
Cook, an agent of the Columbia Sou
'hern Irrigation Company, plaintiff
Dpscured a ten days option to secure
right to use water for irrigating
800 acres of land and to obtain a
utle to the premises. for all of which
ne was to pay on the basis of $40 an
acre This real property embraced
'hpee desert land claims of 800 acres
each In Crook county, held respect
vely by Maria Laidlaw, her husband
(the defendanD and Champ Smith,
The defendant on December 10, 1904,
assigned his land claim to plaintiff,
whose son, ]. o, Gerklng, secured a
of Mrs. Laidlaws claim, AT
The same time the corporation, by
defendant as its manager, executed to
plaintiff bond for a deed covenant
Ing to convey fee simple title to the
southeast quarter and the east half
Of the southwest quarter of section
z, and the west half of the southwest
quarter of section s, all in township
t6 south of range 10 east, containing