Springer v. Pritchard

By the Court,

Belknap, J.:

The complaint consists of two causes of action. The first is upon two promissory notes given to the plaintiff in part payment of a tract of land and water right. The second is upon a promissory note made payable by the defendants, to the order of W. J. Brandon, and by him indorsed to the plaintiff. The answer, among other things, alleges that ■respondent made false and fraudulent representations concerning the title to the water, and thereby induced the defendants to purchase the property. The false representations were that he was the owner of a third interest in the water, when in fact he did not own any interest in it. Defendants seek to avoid payment of the two notes mentioned in the first cause of action for this reason.

The defense to the second cause of action is that a payment of $500 made on the Brandon note was erroneously credited upon one of the notes mentioned in the first cause of action. Correcting that mistake, it is claimed that this note has been paid, except a small balance of interest. The case was tried by the court, without a jury. -Judgment was rendered for respondent. No written findings were filed.

The principal question was whether or not the representations were false and fraudulent. Upon this subject, Pritchard testified that, before the sale was made, plaintiff told him that he owned a third interest in the water ditch and water; and Snyder, the only witness to the conversation, other than the parties themselves, corroborated his testimony. But Springer denied it. His testimony was that he only agreed to sell his interest as he had acquired it from his grantor. This statement shows that a substantial conflict existed in the evidence, and, in the absence of a finding to the contrary, we must adopt the conclusion reached by the district court that the fraudulent representations were not established. In this view of the case, the defense upon the ground of fraud having failed, and the defendants being liable for all of the notes, it is immaterial upon which note the payment of $500 was made.

There were exceptions to the exclusion of evidence, but the evidence to which they relate has not been brought up, so that we cannot determine whether it was admissible. Several deeds made by persons not connected with the parties to this action were offered for the purpose of proving that the title to the water was not in respondent. These deeds were not competent evidence to prove that he did not own the water, for the reason that they were transactions between third persons, with which respondent had nothing to do.

Judgment and order affirmed.