Harmening v. Howland , 25 N.D. 38 ( 1913 )

Fisk, J.

(after stating the facts as above). Appellant assigns twenty-seven alleged errors, all relating to the trial court’s rulings and instructions. Such as are referred to at all in the printed brief and argument are argued only in a general way by grouping the assignments under a few points which we will consider in the order presented.

It is first contended that it was prejudicial error to permit plaintiff, at the conclusion of his case, to amend the complaint by adding thereto an allegation and prayer for exemplary damages. There is no merit in this contention. The amendment was wholly unnecessary, but it did no harm. This court has expressly held that such damages may be recovered under a claim for damages generally. Shoemaker v. Sonju, 15 N. D. 518, 108 N. W. 42, 11 Ann. Cas. 1173.

The second contention made by appellant challenges the correctness of a certain instruction relative to the burden of proof as to the good faith of defendant in furnishing to plaintiff the dismissal of the Far-gen contest and the Kiell relinquishment, in the event the jury should find from the evidence that the relationship of attorney and client existed between the parties at the time of the transaction in question. No claim is made that such instruction does not state a correct rule, but it is insisted that there is no foundation in the testimony authorizing the same; but, after an examination of such testimony, we are agreed that the jury was fully justified in finding that such relationship did in fact exist. We shall not take the time nor the space necessary to a review of sucb testimony in this opinion, as to do so would serve no useful purpose.

It is next contended in effect that there is no competent proof in the record that a final decision was rendered by the United States Land Department upholding Fargen’s contest and canceling plaintiff’s entry for the land described in the complaint. It is apparently not questioned that certain original documents introduced in evidence from the Land Office Department, if properly authenticated, are sufficient to furnish such proof, but appellant contends that the same were not thus authenticated. In this connection counsel calls our attention to § 7300, Uev. Codes 1905, subdiv. 8, and to §§ 2469, 2470, United States lie-vised Statutes, U. S. Comp. Stat. 1901, p. 1557. But these statutes merely prescribe a method by which such proof may be made. They permit of this easy and simple way of proving public documents, but such methods are by no means intended to be exclusive. It would, indeed, be strange if either the legislature or Congress, by such enactments, had thereby intended to preclude a higher quality of proof than that mentioned in the statutes, such' as the originals would furnish. Such originals were, of course, the best evidence when properly identified. That they were properly identified is, we think, entirely clear. Such original documents were produced in court and identified as such by the register of the local land office. That such official, as the custodian thereof, was a proper person to thus identify these exhibits, is too clear for serious discussion. The proof thus furnished was ample to establish the fact that the Fargen contest was finally sustained and plaintiff’s entry canceled, as well as the facts as to the other proceedings had in the United States Land Office relative to such land. Jones, Fv. 2d ed. § 525; Grandin v. LaBar, 3 N. D. at p. 457, 57 N. W. 241 ; Jesse D. Carr Land & Live Stock Co. v. United States, 55 C. C. A. 433, 118 Fed. 821 ; Campbell v. Laclede Gaslight Co. 119 U. S. 445, 30 L. ed. 459, 7 Sup. Ct. Rep. 278 ; 32 Cyc. 1044, 1045.

The proof furnished by such land office records is, moreover, materially supplemented by other testimony in the case which is uncontroverted.

Finally it is urged by appellant’s counsel that there is no sufficient foundation in the record upon which to base a verdict for exemplary damages, and that it was prejudicial error, therefore, to submit such question to the jury. Counsel frankly concedes that the question as to-the sufficiency of the evidence to justify the verdict on this issue is not properly before us, but their contention is that proof of facts authorizing exemplary damages is wholly' lacking. We cannot thus read the record. We think there is ample testimony on which the jury was warranted in finding that defendant knew that he had no authority to dismiss the Fargen contest, and that in attempting to do so he acted fraudulently and in total disregard of the rights of plaintiff and of the disastrous consequences which might thereby befall him, and by such act he misled him to his great damage. To warrant exemplary damages, proof of actual malice was not necessary. If the defendant intentionally, through fraud and deceit, induced the plaintiff to believe- and to act upon the belief that such purported dismissal of the Fargen contest was authorized, he must suffer the consequences, and is not immune from the imposition of punitive damages. Whether the defendant was guilty of such conduct was, under the evidence, a question essentially for the jury; and while the amount of the jury’s verdict seems somewhat large, we are not prepared to say, nor are we asked to hold, that such amount is excessive. Manifestly, under the record, it is difficult, if not impossible, to measure with any degree of accuracy the actual damages suffered by plaintiff; and it may be, as respondent’s counsel contend, that the damages awarded are wholly inadequate to redress the injury inflicted on plaintiff’s rights by defendant’s wrongful conduct.

Finding no error in the record, the judgment is affirmed.