Brown,  82  Cal. 64,  22  Pac. 879;  Morrison  v. Lods,  39  CaL  381.)


54  Mont.]     Como  Orchard  Land  Co. v. Markham  et  au    441

MR. JUSTICE  HOLLOWAY  delivered  the  opinion  of  the
court. •

This  suit  was  instituted  to  foreclose  a  mortgage  given  to
secure  an  indebtedness  of  $4,500. The  defendants  admit  the
execution  of  the  notes  and  mortgage  and,  by  way  of  affirmative
defense  or  counterclaim,  allege:  That  in  May,  1909,  they  pur-
chased from  the  plaintiff  the  lands  described  in  the  mortgage
and  that  the  indebtedness  sued  upon  represents  the  unpaid  bal-
ance of  the  purchase  price;  that  the  lands  were  sold  by  plain-
tiff and  purchased  by  defendants  for  orchard  purposes;  that
plaintiff  agreed  to  plant  the  lands  to  orchards  and  cultivate
them  for  five  years;  that  defendants  were  residents  of  Wiscon-
sin, without  experience  in  fruit  raising  and  without  any  knowl-
edge of  the  lands  except  such  knowledge  as  they  gained  from  the
information  furnished  by  plaintiff;  that,  to  induce  the  pur-
chase, plaintiff  represented  to  defendants  (b)  that  the  locality
where  the  lands  are  situated  was  a  long-tried  fruit  district,  free
from  serious  crop  failures,  damaging  frosts,  or  harmful  pests;
(d)  that  fruits  of  hardy  and  semi-hardy  varieties  prosper  in  the
locality  as  nowhere  else  in  the  United  States-,  (e)  that  the  de-
mand for  Montana  grown  fruits  exceeded  the  supply  and  that
there  was  a  ready  home  market  at  remunerative  prices;  (g)  that
orchards  operated  by  plaintiff  in  the  vicinity  had  been  success-
ful, yielding  large  profits  on  the  investments;  (h)  that  apple
growing  has  been  very  profitable  in  this  vicinity,  it  being  under-
stood that  these  lands  would  be  devoted  principally  to  apple
raising;  and  (k)  that  plaintiff  had  available  expert  knowledge
of  the  business  which  would  be  applied  to  the  end  that  proper
selections  of  trees  would  be  made  and  conditions  injuriously
affecting  the  industry  avoided. It  is  alleged  that  all  of  these
representations  were  false;  were  known  to  plaintiff  to  be  false
when  made ;  that  they  were  intended  to  be  accepted  as  true  and
to  be  acted  upon;  that  they  were  believed  and  acted  upon  by
defendants  to  their  damage,  and  that  but  for  them  the  lands
would  not  have  been  purchased;  that  defendants  were  lulled
into  a  sense  of  security  by  subsequent  statements  of  the  same


442    Como  Orchard  Land  Co. v. Markham  et  al. [Dec. T. 