99 A. 1032 | Conn. | 1917
Trial was had upon a complaint in which the plaintiff alleged that she had employed the defendant as a real-estate agent to sell her property, and that he, taking advantage of his position as such agent, falsely and fraudulently misrepresented the value and condition of her property and thereby induced the plaintiff to sell the same to him at less than its present value. The plaintiff claimed to recover $2,000 damages. The defendant's answer was practically a general denial.
Upon the appeal from the denial of the motion to set aside the verdict, the defendant claims that there *406 was no proof that he ever became the agent of the plaintiff or practiced the fraud as alleged. Defendant's counsel grants that there was such evidence; but he denies its sufficiency, because he asserts that the overwhelming preponderance was against the plaintiff's claim of agency and fraud. Upon these points there was conflicting evidence, and while the trial court was of the opinion that the preponderance of the proof was with the defendant, it did not feel that it could hold the action of the jury to be so unreasonable as to justify it in setting the verdict aside.
The ruling was correct. The issues were issues of fact, to be decided upon conflicting evidence, and for the sole and final decision of the jury, unless the evidence plainly showed that the decision of the jury was so unreasonable as to violate our familiar rule. Our examination of the evidence does not so indicate.Roma v. Thames River Specialties Co.,
Complaint is made concerning the charge as to the measure of damage. The court instructed the jury that "the damage would be the difference between its present value at the time (it appears from the title that the property is still owned by the defendant) and what the defendant paid for it."
Under our rule, in actions of fraud in sales of personality or realty, "the measure of damages is . . . the difference between the actual value of the property at the time of the purchase, and its value if the property had been what it was represented and warranted to be." Gustafson v. Rustemeyer,
The plaintiff insists that the charge, though incorrect, was harmless, since there was no evidence before the jury of the present value of the property, but only of the value of the property at the time of the sale; and that the court pointed this out to the jury and instructed them that the evidence of the value at the time of sale might be taken as evidence of value at the present time, in the absence of evidence to the contrary. The supplemental instruction asked for by the jury, concerned the point whether the "value should be taken of the property at the present time, or at the time of the transfer of the property." The court repeated its instructions, adding that it "recalled no evidence adduced in the trial that expressly showed that the value had been increased or diminished since that date, other than perhaps there was by some of the witnesses a statement to the effect that values in that vicinity had since this transaction been improving, but no express evidence as to what the value of this property was at the present time, as I recall in terms."
The attention of the jury was thus explicitly directed to the evidence which had been admitted of the increase in value of property in this neighborhood from the transfer to the present time. They were at liberty to consider this increased value in fixing the present value, and we are not satisfied that they did not do this. Indeed, the amount of the verdict tends to indicate that that is what they did do; for if the assessment had been made upon the values as testified to by the several witnesses, the highest value at the time of the transfer would have been found to have been $4,000, and to support the verdict it must have been found to have been $4,250.
The plaintiff offered her own deposition in evidence, taken after due notice at her residence. The defendant objected to its admission, because prior to its taking *408 he, by his attorney, had demanded that he be permitted to be present at its taking, and the attorneys for the plaintiff had refused to permit him to be present. The reason for taking the deposition of the plaintiff was on account of her age and physical infirmities, and her attorneys objected to the presence of the defendant because of the effect it would have upon the plaintiff. So far as appears, the notary, instead of ruling upon the objection, permitted the plaintiff's attorney to rule in his stead.
The statute (§ 679) provides for reasonable notice of the taking of the deposition to be given "to the adverse party or his known agent or attorney," and that the authority taking the deposition shall "certify whether or not the adverse party or his agent was present." The notice required is one which gives the adverse party a fair opportunity to cross-examine the witness. Phelps v. Hunt,
The result reached makes unnecessary consideration of other rulings on evidence.
There is error and a new trial is ordered.
In this opinion the other judges concurred.