Marshall v. Hubbard

delivered' the opinion of the court.

■ We concur with the Circuit Court in holding that the alleged false representations of Hubbard to Marshall in reference to the quantity of pine upon the land in question could not have resulted in any injury to the latter, of which he could complain as against the former, unless, at the time the representations w;ere made, it was understood, with Hubbard’s knowledge, that Gillen and Monroe were to surrender their purchase, and that Marshall was to take their place with reference to the land and pine. Undér such ah arrangement, Gillen and Monroe would be released from their obligations to Hubbard, while • Marshall would occupy the position of a purchaser of the land and1 the pine, the title remaining in the plaintiff. The evidence, however, fails to connect Hubbard with any such understanding or arrangement. The evidence shows nothing more, as between the parties to this suit, than a purchase by Marshall of certain property rights which Hubbard held, in-cluding Gillen and Monroe’s obligation to him in reference to the land in question. Marshall was aware of the extent of that obligation, and took from Hubbard the writing of May 23, 18J4, which recites that Hubbard had sold and assigned to him “ all his rigid, title, and interest in and to a certain contract executed and entered into by and between the said Stephen Hubbard, Nicholas Gillen,, and Hugh Monroe, which said contract is dated 23d of May, 1SJ3,” — Hubbard reserving the right to enforce the covenants contained in that contract in his own interest and behalf, in case of default in the payment of either of the notes executed by Marshall to him. So clearly, in our judgment, does the evidence show that this was the only contract between the parties to this suit, that a verdict based upon any other view ought to have been set aside.

*419 Giving the defendant the benefit of every .inference that could have been fairly drawn from the evidence, written a,nd oral, it was insufficient to authorize a verdict in his favor. Such being the case, a peremptory, instruction for the plaintiff was proper. Pleasants v. Fant, 22 Wall. 116, 143; Montclair v. Dana, 107 U. S. 162; Randall v. Baltimore & Ohio Railroad, 109 U. S. 478, 483; Anderson County v. Beal, 113 U. S. 227, 241; Baylis v. Travellers' Ins. Co., 113 U. S. 316, 320.

The judgment is

Affirmed.