Regardless of what may be the rule in other jurisdictions, it is, as stated in Ward v. Jenson, 87 Or. 314, 170 P. 538, well settled in this state that,
"* * * in an action to recover damages for false representations inducing an exchange of property the measure of damages is the difference between the market value of the property parted with by the person *Page 612 defrauded and the market value of the property received by him * * *."
The same rule or measure of damages is adhered to in the later cases of Parks v. Smith, 95 Or. 300 (186 P. 552, 554); Scottv. Wallace, 102 Or. 22 (201 P. 542); Greig v. Interstate Inv.Co., 121 Or. 15 (253 P. 877); Columbia River Door v. Priest,128 Or. 359 (274 P. 116). I am unable to see any substantial ground for distinguishing the cases as done in the majority opinion. If this court is to adopt the "benefit of the bargain" rule in such cases, it should so declare in no uncertain language in order that trial courts may know how to proceed.
The measure of damages set forth in the majority opinion enables plaintiffs to acquire the 160-acre ranch for $100. If the representation had been 8,000 cords of wood, plaintiffs would get the ranch for nothing and the sum of $1,900 in addition. As stated in Curtis v. Buzard, 254 Pa. 61 (98 A. 777), and quoted in note 27 C.J. § 244, p. 96:
"One defrauded `can deduct from the purchase-money the difference between what he agreed and what it was then actually worth, and in our opinion no more, for if he could exceed that measure of damages a vendee of land might get a man's land for nothing, by showing that had the land been as represented it would have been worth enough more than its actual value to wipe out all the purchase-money, and thus give the vendee the land for nothing.'"
The measure of damages as heretofore stated by this court in numerous decisions is, in my opinion, sound and should not be overruled. See numerous cases cited in above note, 27 C.J. § 244, p. 96, among which is Sigafus v. Porter, 179 U.S. 116 (21 S.Ct. 34, 45 L.Ed. 113). *Page 613
Neither am I able to agree that the land without the timber as represented is "virtually of no value." The conclusion as expressed in the majority opinion is contrary to the findings of the trial court and is not supported by the record.
For the foregoing reasons briefly stated I dissent.
ON REHEARING (91 P.2d 312)