2 Mich. App. 130 | Mich. Ct. App. | 1965
Plaintiff filed this action in the common pleas court for the city of Detroit to recover money prepaid to defendant for dancing lessons she did not receive because of her ill health. She claims she was induced to prepay defendant by the representations of defendant’s agents that unused* prepayments would be refunded in the event plaintiff’s health prevented her from taking lessons even though the written contracts clearly stated refunds would not be made. Plaintiff further claimed the representations were false and were known by de
In spite of six questions posed by defendant in its brief and a counterstatement of question involved by plaintiff, this Court believes there are only three issues presented, namely:
1. Does the record establish a ease of actionable fraud?
2. Does the record establish that plaintiff was physically unable to complete the dancing lessons?
3. Are the damages properly computed?
July 22, 1953, at age 57, plaintiff commenced her dancing career with defendant. From that date to November 12, 1959, she signed 12 separate agreements for dancing lessons from defendant. These agreements entitled her to 435 hours of lessons, and she paid $3,858.75 to defendant. Defendant’s records show plaintiff has paid for 62 hours of lessons she has not used. If plaintiff had completed all of her lessons, she would have been entitled to 20 hours of bonus lessons. The uncontradicted and unobjected to testimony of plaintiff establishes that she continued to sign agreements for more lessons on the continued assurances of defendant’s agents that in the event of her illness, defendant would refund the unused portion of prepayments in spite of the provisions in the agreements to the contrary. The only evidence to establish plaintiff’s physical inability to complete the lessons was her testimony.
One of the remedies for fraud is a suit for damages caused by the fraud. Kordis v. Auto-Owners Insurance Co. (1945), 311 Mich 247. This is the remedy plaintiff selected. Fraud is a question of fact to be deduced from all the circumstances. Cort
With respect to damages, it is our opinion that the proper measure thereof is the amount plaintiff paid for lessons not received. This is readily computed. It includes 25 hours contracted for November 12, 1959, at a price of $337.50; 30 hours contracted for September 26,1959, at a price of $403.50; and 7 of the 20 hours contracted for April 5, 1958, at the rate of $13.45 per hour, or $94.15. This totals $835.15. Plaintiff is entitled to interest at 5% on this sum; the problem is from when? The transcript does not establish the date of plaintiff’s demand for refund. The only positive date on which to commence the computation of interest is the date on which suit was filed, namely: September 26,1963.
The trial court is affirmed except as to amount of judgment, and the cause is remanded for entry of judgment for plaintiff in the amount of $835.15 plus interest on that sum at 5% per annum from September 26, 1963, to date of entry of the amended judgment in the lower court. Appellee may recover costs.
