Docket No. 29 | Mich. | Sep 27, 1910
Lead Opinion
The action is trespass on the case in which plaintiffs recovered a judgment against defendant fqr $993.28.
The defendant was the owner of a tract of wild land in the island of Cuba, upwards of 9,000 acres in extent. It appears to have been its purpose to subdivide this tract into farms of 40 or 50 acres each, and to sell them to prospective settlers. Through one of its agents, it sold one of these farms to plaintiffs, who went to Cuba in March, 1908. Wilgus remained there until October, 1907, and Painter, with the exception of five months spent in Florida, remained there until April, 1908. Suit was commenced in July, 1908; plaintiffs claiming that they were induced to make the contract in question through false and fraudulent representations made by defendant through its agent. Paragraph 3 of the declaration is as follows:
“That on the date aforesaid the said defendant, by its duly authorized officers and agents, offered to sell to said plaintiffs a certain part or portion of said large tract of*262 land for the sum of $1,275, and then and there by its officers and agents represented to the plaintiffs that about one-half of a large tract of land, consisting of some 4,000 or 5,000 acres, had been sold by said defendant company in tracts or parcels of 40 or 50 acres each, to persons who were going to settle upon each and every parcel thereof, clear said lands, • and make their homes thereon; that such concerted and united effort so to be made by each of said persons, to clear and settle upon each of said parcels of land, would greatly enhance the value of each and every parcel of said large tract of land, including the parcel of land so offered for sale by said defendant company to said plaintiffs.”
The alleged false and fraudulent representations were made by one Beaman, who represented himself to be the general manager of the defendant. His authority to negotiate for the sale of the property cannot be questioned.
The plaintiffs are brothers-in-law, and it was their purpose to go together to Cuba and act in concert. This fact was known to Beaman, as is indicated by letters, written by him, addressed to both plaintiffs in Cuba before the contract was entered into. The representations were made by Beaman to plaintiff Wilgus only, at Belfontaine, Ohio, in February or March, 1906. Wilgus testified in part as follows:
“ Q. What did he say as to how much of this land had been sold ?
“A. I said to him, 'How much of this land have you sold ?’ He says: * Here are 4,000 acres, made in tracts of 40 or 50 acres each. We have sold 2,000 acres of that land.’ I says to him: 'How have you sold it? * * * Have you sold it to actual settlers or to speculators who are going to buy it and not go there and wait until people transfer it and then sell it at a price above and let other people make the improvements down there ?* He says, ‘We have sold that to actual settlers who are going on that land within sis months or a year and settle on it and make it their permanent home.’ Beaman says at that time that the.settlers would commence to go there October 1, 1906; * * * that there was going to be a large amount of people there. I would be the last of them.
*263 “ Q. There would be a settler upon each one of these parcels they had sold ?
• “A. He said they had sold these, and it was going to be settled upon within six months or a year, and they would make their permanent homes there. * * * He claimed that in all 2,000 acres were sold to actual settlers, in parcels of 40 or 50 acres.”
This information was communicated by Wilgus to Painter, his brother-in-law, and on March 20, 1906, they together set out from Ohio, for Cuba. Arrived in Havana, they were met by J. Warren James, secretary of defendant, who accompanied them to the land, 417 miles east of Havana. Both plaintiffs testify that they told James of the representations as to sales made by Beaman, and that James told them that they might rely implicitly upon what Beaman had said, though he personally did not know what sales Beaman had made. Plaintiffs examined the lands for several weeks and found them as represented, fertile wild lands. They finally selected a certain lot, and after considerable correspondence with Beaman entered into a contract to purchase it. They sent for their families and remained in Cuba upwards of 18 months, during which time they cleared about 15 acres of the land. Wilgus testifies that, had the representations made by Beaman been true, the land purchased by him and Painter would have been worth $4,000; that alone in the wilderness, as he and Painter were, it was utterly impossible to exist, and the land was worthless. Becoming convinced that no actual settlers would go upon the land, plaintiffs abandoned their property, returned to Ohio, and brought suit against defendant for damages.
It was not claimed by the defendant, upon the trial, that, at the time Beaman is said to have made the representations relied upon, the defendant had sold a single acre of ground to any person who either had or had not the intention of settling thereon. It is urged by defendant that, even if Beaman made the representations as claimed by plaintiffs, said statements being concededly
“ I have sold 2,000 acres of this land, in parcels of 40 or 50 acres each, to individuals who assured me of their intention to settle thereon with six months or a year.”
This was a statement of fact, not only as to the actual sale, but as to assurances theretofore made by the purchasers to Beaman. Both were false, both were past, and both material. There can be no doubt, under the testimony in this record, that plaintiffs relied upon these statements, acted upon them, and were injured thereby. If made by defendant’s agent, as claimed by plaintiffs, they were clearly actionable. See McDonald v. Smith, 139 Mich. 211" court="Mich." date_filed="1905-02-28" href="https://app.midpage.ai/document/mcdonald-v-smith-7942970?utm_source=webapp" opinion_id="7942970">139 Mich. 211 (102 N. W. 668), and cases there cited and discussed.
It is next urged by defendant that, inasmuch as the representations were made by Beaman to Wilgus alone, Painter is improperly joined as a party plaintiff. It is true that “ one making a misrepresentation is responsible to such person only as it is intended for;” but, as indicated above, we think it clear that Beaman knew that Painter was interested as well as Wilgus, and was acting with Wilgus in reliance upon his statements. The letters written by Beaman to Wilgus and Painter before the contract was executed put this matter beyond dispute. If the misrepresentations were made, they were obviously made for the purpose of influencing Painter as well as Wilgus. It follows that the parties plaintiff are properly joined. 14
A more serious question is raised as to the measure of damages. Upon this point the court charged the jury as follows: '
“ If you find for the plaintiffs, I think they would be entitled to recover such sums of money as they have shown by the evidence to have jointly expended in such enterprise by way of payments upon said land, and a fair compensation for their labor and expenditures in the way of improvements upon said land, less and deducting therefrom what you may find from the evidence is the actual worth and value of the land in question as it now stands.”
After this charge was given and the jury had retired for a time, they returned to the courtroom and asked the court the following question: “Is the land contract still in force ?” The court requested counsel for defendant to answer the question, which request was refused. A long colloquy followed between the court and counsel for both .parties, in the course of which counsel for plaintiffs disclaimed any further interest in the lands. The jury were finally told to disregard the colloquy and follow the instructions previously given. Defendant insists, and counsel for plaintiffs concede, that the true measure of damages in the case at bar is that laid down in Page v. Wells, 37 Mich. 415" court="Mich." date_filed="1877-10-23" href="https://app.midpage.ai/document/page-v-wells-7928715?utm_source=webapp" opinion_id="7928715">37 Mich. 415, where the court said:
“ If the plaintiff was induced to purchase upon the representations which proved to be untrue, the measure of his loss, as it seems to us, would be perfectly plain, and would be reached by an answer to the following question: How much less is the land worth as it is than it would have been if its condition and quality had been as represented ?”
See, also, Smith v. Werkheiser, 152 Mich. 177" court="Mich." date_filed="1908-03-31" href="https://app.midpage.ai/document/smith-v-werkheiser-7944721?utm_source=webapp" opinion_id="7944721">152 Mich. 177 (115 N. W. 964, 15 L. R. A. [N. S.] 1092, 125 Am. St. Rep. 406); Peters v. Birkett, 153 Mich. 61" court="Mich." date_filed="1908-05-26" href="https://app.midpage.ai/document/peters-v-birkett-7944822?utm_source=webapp" opinion_id="7944822">153 Mich. 61 (116 N. W. 538).
But it is urged on behalf of the plaintiffs, that, had the correct rule been given, the damages allowed by the jury would have been much larger; therefore the error is without prejudice. It is pointed out that the only testimony,
Error is assigned upon the conduct of the trial. It is asserted by counsel for defendant that the attitude of the trial court was palpably unfair and led to a miscarriage of justice. Emphasis is laid upon the fact that an amendment to the declaration was permitted without imposing terms. We think the court acted clearly within his discretion in permitting the amendment in question. It was of a trivial character, was perhaps unnecessary, and could not, in any event, have taken defendant by surprise.
Our attention is next directed to the proceedings had when the jury returned to the courtroom for further instructions. We have examined these proceedings with care and fail to find any error therein, except the reiteration by the court of the erroneous rule of damages, which, for the reason above pointed out, was not reversible.
Upon a review of the whole case, we are not able to say that the judgment indicates that the jury were swayed by any motive not entirely proper.
The judgment is affirmed.
Rehearing
ON REHEARING.
It was held in our former opinion, ante, 260 (127 N.W. 739" court="Mich." date_filed="1910-09-27" href="https://app.midpage.ai/document/painter-v-lebanon-land-co-7946277?utm_source=webapp" opinion_id="7946277">127 N. W. 739), that the erroneous instruction upon the measure of damages was without prejudice to defendant, for the reason that, under a correct instruction, the
The judgment must be reversed and a new trial ordered.