| Mich. | Jun 16, 1887
Plaintiff sued defendant in an action of trespass on the case for falsely and fraudulently representing to plaint ff, and informing him, that the firm of Thomas Sherk & Co., compose! of Thomas Sherk and John E. Durham, weye men fit to be trusted, and that he would be safe in furnishing to said firm the brick required by them in consi ructing certain brick houses for defendant, and that there was no danger in doing so, and that he would get his pay for aay brick he might furnish to them; that the material would be paid for in full first, and there was plenty of money to pay it, and then the contractors would get the balance; that plaintiff should go on, and deliver the brick as ordered by Sherk & Co., and, after he got it delivered as ordered, to send his bill into the architect’s office, to Mr. Wood, his agent, and plaintiff would be paid by defendant; and plaintiff alleges that, relying upon these representations, he went on and delivered 60,000 brick at $5.50 per thousand, and presented his bill therefor to Mr. Wood, who at first put him off, and finally refused to pay altogether; that these representations were false and fraudulent, and made for the purpose of inducing plaintiff to part with his property.
The representations claimed were wholly verbal.
Plaintiff does not claim that the representations were made of and concerning the character, conduct, credit, ability, trade, or dealings of Sherk & Co. He alleges .in his declaration that he knew Sherk & Co. were then and there in
I do not think the statute (How. Stat. § 6188) has any application to a case of this kind. The gist of the action is-the false representations made by defendant of the relations existing between himself and his contractors, and his statement that the plaintiff should go on and fill his order withSherk & Co., and send in his bill to him (defendant), and it would be paid; that there was money enough, of which he had the control, to pay for all labor and material; and that-he should not be afraid, but go on and deliver the bricks, and he should get his pay. Hi les s there was such an amount of money due or to become due the contractors, and unless his relations with his contractors were such that he could control and direct the payment of the money to plaintiff for the bricks when he should have completed the delivery, his representations made to plaintiff were fraudulent; for, under the testimony, there can be no doubt that he led the plaintiff to believe that he had the authority to and would protect and pay him for the bricks out of moneys under his control payable to his contractors.
His representations were not that Sherk & Co. would pay plaintiff for his bricks, or that they were entitled to credit* or that they had the ability to or would pay him therefor*
The court erred in taking the case from the jury. The judgment is reversed, and a new-trial granted.