Denied July 29, 1913.
On Petition for Rehearing.
(133 Pac. 1189.)
Mr. Justice Eakindelivered the opinion of the court.
The principal ground for the petition for rehearing is based on the holding of the opinion that Murtón was not shown to be a party to the fraud by which the $1,500 was added to the actual price of the land and returned to McNair, by which McNair and Page alone profited; second, that the opinion holds that plaintiff suffered no damage by reason of any fraud of defendant; and, third, especially that this court assumes to decide questions of fact passed upon by the jury.
5. We will consider the last point first. We find nothing in the record as to the former jury trials of this case, only as stated in plaintiff’s brief and as mentioned in the oral argument; but, assuming that it be the case, we must also assume that former verdicts were set aside for good cause, that we have only to do *207■with the present verdict uninfluenced by prior ones, and that we are not to be controlled by it, if there was error in the trial that contributed to the verdict.
As to the damages suffered by plaintiff, the only special damages sufficiently alleged to admit of proof is the payment of interest, expenses of the survey of the land, and taxes paid, which items were not incurred in consequence of the fraud alleged, but are legitimate items of expense of the undertaking. Loss of time would be an element of special damages; but, the facts not being specifically alleged, it cannot be considered.
6. The only other item of damage is that plaintiff has suffered loss in the sum of $5,000. This allegation will include any items of general damages. The only item of general damages that can be considered was the plaintiff’s share of the $1,500 rebate on the purchase price. Actual damages cannot be based on a possible foreclosure of plaintiff’s interest, or prospective loss on the final outcome of the venture. If plaintiff feared such a result, his remedy to rescind was ample protection.
7, 8. Plaintiff’s testimony that his interest was not worth 15 cents is not a statement of a fact, but a mere conclusion, and he testifies that the land is worth $75 an acre, being $7,000 more than it cost; so that, if defendant was not knowingly a party to the deception as to the actual price being $18,500, and of the refunding of the $1,500, there was no proof of damage with which defendant was chargeable. On April 15th Murtón signed the contract for the purchase of the land for the price of $18,500, on May 21st gave his notes for the unpaid part of that amount, and on August 2d severed his connection with the transaction.
Plaintiff cites McNair’s testimony, wherein it is asked: “Q. Did he [Murtón] know anything about these representations? ” He answered: “Well, I *208think he did” — the misrepresentations about the $5,650 claimed to have been paid to Murtón on his assignment being the subject of inquiry, and the answer of the witness is not evidence as to Murtón’s knowledge of the rebate in price. We are not passing on the proof, nor the extent of the fraud on the part of McNair and Page. No doubt, as appears from the evidence, there was ample ground to charge them with it, and that actual damage resulted therefrom; but the defendant must not suffer for fraud or damage with which he is not connected.
The petition is denied.
Beversed : Behearing Denied.