The opinion
On Motion for Rehearing.
[5] Appellant insists that Closner knew nothing about the conflict of the surveys until 1911, and yet the .statement of facts contains a letter written by Chapin about a conflict in 1908, and he swore positively:
“It is a fact that I knew on the date of the July contract, 1908, or shortly thereafter, that there was a contention that surveys 255 and 257 were in conflict with the Mesteñas grant. I knew of the alleged conflict on or before January 18j 1909. I tried to prevail upon De Wolf at the time of taking the second option to leave out of the option sections 255 and 257, on the ground of their being in conflict with older surveys, and De Wolf told me that he would not sell part without selling all, but assured me that we were mistaken in regard to the conflict. * * • I remember the facts connected with this extension agreement dated January 18, 1909, and it is a fact that both Closner and myself at that time knew of the alleged conflict of surveys 255 and 257 with an older grant. We proceeded with'said option contract of January 18, 1909, after we knew of the alleged conflict of surveys 255 and 257, because we were assured by Mr. De Wolf that there was no actual conflict.”
Who was De Wolf? He was an expert surveyor and agent of appellant, who had re- *806 eently surveyed the lands, and whose accuracy oí statement as to any conflict in the surveys could be implicitly relied upon by Chapin and Closner. Still, in the face of the evidence, it is asserted that the conclusion of this court that Closner relied upon the representations of De Wolf is unwarranted, “in that such finding and holding is without evidence to support it, and is contrary to the established facts, in this, that Closner testified that he never heard of the conflict until about a year and a half before the trial.” The uncontradicted evidence showed that Chapin was acting for Closner .in the purchase of the land, and representations iñade to him which induced the trade were representations máde to both. Chapin testified that Closner knew about the conflict in January, 1909, as hereinbefore shown. The trade was made with Closner and Cha-pin, and not with Sprague. Both Closner and Chapin signed the agreement extending the option. It would not matter whether Clos-ner knew of the conflict or not, if Chapin, who was acting for him, did. If Closner did not know of the conflict, he should not be held liable for the two sections which appellant knew he had no title to when he sold it.
Although contending in the first clause of the motion for rehearing that Closner knew nothing of the conflict when the land was purchased, in the third clause appellant insists that knowledge on the part of Chapin of the conflict was the knowledge of both. If that be true, the representations made by De Wolf to Chapin that there was no conflict were representations made to both. The principle is elementary.
The motion for rehearing is overruled.