(concurring specially). I concur in tbe affirmance of tbe judgment, but I do not concur with what is said in tbe opinion of Mr. Justice Bobinson relative to tbe breach of tbe covenant of quiet enjoyment. Tbe complaint, it is true, alleges a cause of action for the breach of a covenant of quiet enjoyment, but its main allegations are allegations of false and fraudulent representations and damages incident thereto. At tbe beginning of thé trial a motion was made that tbe plaintiff be required to elect as to whether he would stand upon tbe cause of action for fraud, or upon that for breaches of warranties and covenants in tbe deed, and in response to this motion, plaintiff’s attorney stated: “There isn’t any question as to the position of tbe plain*652tiff as to our theory of the case being based upon, the allegations of fraud as an element of damages upon which we expect to recover.” In view of that statement, the trial court did not rule upon the motion, and the record shows that the case was tried upon the theory of deceit. For this reason, I am of the opinion that the judgment will have to stand or fall as a judgment for damages in an action of deceit.
The only serious question is that of the sufficiency of the evidence to show a representation by the defendant which plaintiff was justified in relying upon and which he did rely upon. The argument upon this question is concerned principally with the plaintiff’s own testimony. It appears that the defendant had testified that he had told the plaintiff, in substance, that he did not know how many acres were in the river, that there might be 1 or 160 acres of it.
The plaintiff, in rebuttal, when being examined by his own counsel, testified ás follows:
Q. In any of this talk that you had with Sosenquist, did he say to you or in your presence that he did not know how much of the land was in the river, — there might be 1 or 160 acres of it?
A. Not that time; it was the time we came back after we made this trip.
Q. After you had made the trip ?
A. Yes, sir.
Q. That was when you told him that you would have to rely upon what he said?
A. Yes, sir.
Q. And was that the time when he said there wasn’t over 3 to 5 acres in the river ?
A. Yes, sir.
It is contended that the plaintiff in this testimony admitted that the defendant had told him that he did not know how many acres were in the river, that there might be 1 or 160. If the testimony is fairly susceptible of this construction, it would follow that no representation was made. A statement of this character, standing alone, would go a long way toward putting the plaintiff upon his guard, and would amount to an announcement that the defendant would not undertake to say how *653many acres, of land bad been destroyed' by tbe river. But tbe statement does not stand alone. Tbe plaintiff further testified that during tbe same conversation be told bim that be would have to rely upon bis statement as to tbe number of acres, since be couldn’t get to tbe land. And be further states that tbe defendant said that there weren’t over 3 to 5 acres in tbe river. It appears to us that a fair construction of tbe plaintiff’s testimony is that be would not deal with tbe defendant except upon tbe basis of tbe truth of tbe defendant’s statement that there weren’t over 3 to 5 acres in tbe river.