Gilchrist and Another v. Gensler

201 N.W. 918 | Minn. | 1925

¹ Reported in 201 N.W. 918. Action for damages on account of defendant's misrepresentation of a fur coat sold by him to plaintiffs on the instalment plan. Verdict for plaintiffs for $150, reduced by the trial court to $100. Defendant appeals from the order denying a new trial.

Defendant labors under the mistaken notion that this was an action for rescission. Part payments had been made when plaintiffs learned of some of the misrepresentations. The falsity of the principal misrepresentation, that the fur was not muskrat, was not discovered until just before suit was brought, according to plaintiff's testimony. Where one has performed a contract in whole or in part before discovering the falsity of the representations inducing him to enter it, he may affirm the contract and bring his action for damages for the deceit. Humphrey v. Sievers, 137 Minn. 373, 163 N.W. 737. It is claimed judgment should have been ordered for defendant, because the proof showed the coat to be worth as much as plaintiffs paid for it. There was testimony by plaintiffs that the garment was of very insignificant value, and also of one who understood furs that some of the skins used were practically worthless and unfit. It is quite plain the jury could find not only that there had been misrepresentations as to kind of fur and wearing quality of the coat, but that plaintiffs had been damaged thereby.

The order is affirmed.