Feak

This action was brought to recover damages for fraud. The trial court instructed the jury to return a verdict in favor of the defendant upon the ground that the action was barred by the two-year statute of limitations of the state of Oregon. Sections 1-201, 1-206, Oregon Code 1930.

This is the second action brought for this same fraud. A judgment of nonsuit was entered in the first action. This action having been brought within a year after such nonsuit (section 1-219 Oregon Code 1930), the question is whether such first action was brought within two years after the fraud was or should have been discovered. That action was brought April 26, 1933. The question, therefore, is whether or not the fraud was discovered by appellant or his partner, or, if not, whether either of them had sufficient information prior to April 26, 1931, to charge the copartnership with notice of the fraud as a matter of law.

The fraudulent representations sued upon were made in January, 1930, at Portland, Ore., by Mr. Niles, the general agent of the Marion Steam Shovel Company for the states of Washington and Oregon, and were to the effect that a certain gas electric shovel worth about $15,000, which had…