177 Mich. 250 | Mich. | 1913
A judgment was recovered by plain
The. facts in the case necessary to understand the somewhat complicated issues are as follows: Defendant and appellant started this vaudette, or moving picture show, in Ann Arbor in 1907 and continued until June, 1908, at which time James H. Gil-lard, his brother, came there to attend the university and purchased the property from him. Appellant then went to Marquette to practice law until December, 1909, when he removed to Grand Rapids and later became a member of the law firm of Smedley, Hall & Gillard. In March, 1910, James H. Gillard sold the property to a man named Gillman under a contract and moved to California. He gave appellant a power of attorney to care for his interest in the property with full power to sell. Later in the same year, this defendant being at St. Joseph, Mich., on business, he met the defendant Weeks, who at the time was a traveling salesman for the National Film
Two or three days after this trip, and on October 19, 1910, Weeks came to Grand Rapids with plaintiff for the purpose of purchasing the property. He telephoned this fact from the depot and asked the location of his office. Appellant told him and met them as they left the street car. Some negotiations were had at appellant’s office during which he claims plaintiff was told by him that he could give possession within two weeks; that he expected to have trouble with Gillman, perhaps a lawsuit, but he would defend it without cost to him. Terms were agreed upon, and appellant, as attorney in fact for his brother, sold and transferred the property in question for the sum of $750 to the plaintiff by written bill of sale and drew an agreement between Weeks and plaintiff at their request that Weeks could acquire a half interest in the business later on certain terms. He also drew a promissory note for $200 from plaintiff to Weeks.
Plaintiff’s version of this transaction is as follows:
The principal errors assigned and relied upon by defendant and appellant will be considered. The first relates to the question of claimed variance between the averments of the declaration and the proofs. At the close of plaintiffs case this appellant moved for a directed verdict in his favor for the reason, among others, that there was a fatal variance between the declaration and the proofs. The motion was argued and denied.
The principal allegations in his declaration relied upon by plaintiff are:
First, that the defendant falsely represented he had a right to sell the property as attorney in fact for his brother and such sale was in violation of Gillman’s rights; second, that defendant falsely stated to plaintiff the amount of the receipts of the business during three weeks preceding the sale; third, that defendant falsely stated that the property was paid for; fourth, that defendant told plaintiff that Weeks had paid him $200 on the purchase price, which he. would forfeit unless Kimble paid the $750; fifth, that defendant met Weeks at St. Joseph and entered into a secret arrangement with him whereby Weeks was to induce plaintiff to buy this property, for which defendant was to allow Weeks for such service all of the purchase price over $750.
The declaration avers that all of these representa
After the motion referred to was made, an amendment to the declaration was allowed to cover one of its objections, that the declaration was fatally defective if a rescission of the contract was claimed, in that it showed no tender of the property to defendant. Plaintiff was then recalled and upon examination by his own counsel, after testifying as to the claimed tender, gave the following testimony:
“Q. What was it, Mr. Kimble, that induced you to enter into this contract to purchase?
“A. Mr. Weeks.
“Q. What about Weeks?
“A. I thought if he was willing to put his money into it, I was mine.
“Q. Was there anything else that led you to do it?
“A. Nothing, only that.”
As far as the representations of appellant to plaintiff, relied upon in the declaration, whereby plaintiff claimed to have been defrauded, are concerned, the foregoing quotation from his testimony fatally varies from the declaration, and the court was in error in not so holding.
It is a well-settled rule, familiar and fundamental, that, in order to make misrepresentation actionable, there must be a reliance upon the representation. Parker v. Armstrong, 55 Mich. 176 (20 N. W. 892); 20 Cyc. pp. 108, 109, and cases cited.
All the material allegations relied upon in an action for damages for false representations must be proved substantially as alleged. The motion of defendant for a directed verdict should have been granted upon this ground.
Another item of evidence relied upon to support this contention was testified to by plaintiff to the effect that Weeks had told him he put $200 into this purchase, and if plaintiff did not buy it at $750 he would lose his $200. This was part of a conversation between plaintiff and Weeks in the absence of appellant. This testimony was not admissible. The case was not at issue as to Weeks. His statements made in the absence of appellant could not bind him. The objection of the appellant should have been sustained to this testimony and it should have been excluded.
It was also not admissible for the further reason that it purported to be the admissions of a co-conspirator and no conspiracy had been shown. Solomon v. Kirkwood, 55 Mich. 256, 261 (21 N. W. 336, 338), in which Judge Cooley said:
“The declarations of a conspirator may be evidence against his associates after the conspiracy is made out; but to receive them as proof of the conspiracy would put every man at the mercy of rogues. We find in this case no evidence of the conspiracy ex*258 cept in the statements of Hollander; and, those having been erroneously received, there was_ nothing on that branch of the case to submit to the jury.”
See 6 Am. & Eng. Enc. Law (2d Ed.), p. 868.
Plaintiff was allowed to testify also, over objection, that he heard Weeks at Grand Rapids over the telephone state something about $200, and afterwards when they arrived at the office of appellant he heard Weeks say to him, “Did you get that?” and appellant’s reply that “he did.”
The court on rebuttal also admitted, over objection of appellant, the testimony of one of plaintiff's attorneys detailing a conversation had between him and appellant before suit was commenced, claimed to be an admission tending to , show this conspiracy. The objection made was that it was not rebuttal and that it was a conversation prior to bringing suit, had for the purpose of a compromise. The court sustained the first objection, whereupon plaintiff recalled appellant to lay the foundation for the testimony. He denied that he made the statement claimed and testified that whatever was said was expressly with reference to a compromise between the parties. This was not denied by the witness when upon the stand. The court refused to strike out the testimony. For the reason stated, it was inadmissible and should have been stricken out.
The testimony relied upon by plaintiff to show admissions, if taken as true, would not sustain the contention that a conspiracy was entered into by him to defraud plaintiff. No testimony was introduced in the case supporting the fourth averment of the declaration that appellant told plaintiff that Weeks had paid him $200 down on the purchase, which Weeks would forfeit if plaintiff did not pay $750. It therefore requires no consideration.
In a second motion, as well as in a third, made by appellant for a directed verdict, was included the
“I did not take any steps to preserve this property. I just abandoned it, just locked it up, and let it go; that is all.”
He has never seen it since and did not know where it was at the time of the trial.
The tender claimed to have been made, as testified to by plaintiff, was not in law a tender of this property. It had at that time been abandoned by him, and there is no showing made that he was then in a position to deliver it to appellant. At the time of the trial he was not in a position to make the tender good, and his testimony shows he did not keep it good or have any possession of it after he abandoned it. A party who seeks to .rescind a contract is required to make a tender and keep such tender good and must show at the trial that he is able to deliver the property to thé defendant. Ortmann v. Fletcher, 117 Mich. 501, 504 (76 N. W. 63); Potter v. Taggart, 54 Wis. 395 (11 N. W. 678); Jewett v. Petit, 4 Mich. 508. The motion to direct a verdict for this reason should have been granted.
Other errors are assigned upon the admission and rejection of evidence, the charge of the court, and refusals to charge as requested by appellant, which do not require consideration.
For the errors pointed out in this opinion the judgment of the superior court against appellant is reversed, and a new trial granted.