36 Mich. 283 | Mich. | 1877
The plaintiff, who had purchased of defendants a quantity of railroad ties, paying therefor partly in money belonging to himself and partly in obligations belonging to the Michigan Air Line Railroad Company, has brought this action to recover from defendants for fraudulently selling to him ties they did not own. It appeared in evidence, and was admitted by the plaintiff, that there had been between him and the defendants some sort of a settlement, but there was a dispute as to how much it covered; the plaintiff claiming that it was a settlement only for so much as he purchased with his own money, and defendants claiming that there was a full accord and satisfaction.
We cannot find any fault in these instructions. The plaintiff had but one claim against the defendants, and if he settled with them at all, it must have been for the whole claim. A fraud cannot be separated into two causes of action, and one settled for and the other left open; it is and- must be an entirety. The evidence did not show distinct transactions between these parties in one of which the purchase aves made with the plaintiff’s own money and in the other Avith obligations of the railroad company, but it showed a purchase in which payment was made Avithout any such discrimination'. It was therefore obviously impossible for the plaintiff to settle for the fraud so far as it applied to a purchase Avith his own money, and leave the controversy as to any thing further still open. His demand was single and incapable of division.
Perhaps, had there been evidence that the parties expressly agreed to leave some portion of the' controversy outside of the arrangement alleged to have been made by them, a question might have arisen which would have been embarrassing; but there was no such express evidence. It was denied by the plaintiff that any attempt was made to settle beyond Avhat he had paid with his individual property; but
The judgment must be affirmed, with costs.