79 Mich. 156 | Mich. | 1890
Plaintiff being suit to recover $900 paid by him to the defendant on a contract for the purchase of a stock of drugs, claiming that he was induced to make the contract by fraudulent representations on the part of the defendant.
The declaration is upon the common counts, with a special count alleging that the ■ defendant falsely and fraudulently represented that said stock was free and clear of all incumbrances, whereas it was mortgaged for the sum of $2,087. No representations were made to plaintiff by defendant in regard to this mortgage at the time of the sale. The mortgage was to defendant’s brother-in-law, and as soon as plaintiff called defendant’s attention to it the mortgage was discharged. The plaint
The other false representations relied upon, but not alleged in the declaration, were that defendant said that the store was in good condition, — in good working order; would inventory $2,200, and was really worth $>2,500.
The evidence tended to show that plaintiff was an experienced druggist; that defendant was at the time sick in bed; that plaintiff had ample opportunity to examine the stock; that he paid defendant $900, agreeing to give a mortgage for $700, balance of purchase price; that he took possession of the store and stock; that shortly after he informed defendant that the stock was not as represented; that they then made another arrangement, by which an expert should appraise the property, and plaintiff would pay the appraised value; and that such appraisal was made; and that defendant refused to abide by it.
The evidence on the part of defendant tended to disprove all the facts essential to the plaintiff’s recovery.
The facts were for the determination of the jury, under proper instructions by the court. The court substantially instructed the jury as follows:
1. There was no fraud in the matter of the mortgage, and plaintiff could not rescind the contract on that ground.
2. If defendant made any actual misrepresentations to the plaintiff as to the stock and fixtures, or the amount they would inventory, and plaintiff parted with his money relying upon them, then he was entitled to rescind the contract, and recover the money paid.
3. If plaintiff purchased without any misrepresentation, or if defendant only gave his opinion of the value of the stock, he would not be entitled to recover.
4. If, after the payment of the $900, the plaintiff had discovered that the stock was not as he had supposed, and had refused to sign any mortgage, and entered into a new contract with the defendant, that he would take the stock at whatever the experts would appraise it at;
5. The fraud charged must be clearly established, and is never presumed.
The instructions to the jury were correct.
Judgment affirmed, with costs.