11 Mich. 68 | Mich. | 1862
McCormick sued Picard to recover damages on account of false representations whereby the former was induced to purchase of the latter watches and other jewelry to a large amount.
The declaration contains several different counts, and, inasmuch as it is claimed that all or some of them are fatally defective, it becomes necessary to refer to them.
The first count avers the ignorance of plaintiff concerning the value and quality of the articles sold, the defendant’s knowledge of such ignorance, he himself being a skillful dealer in such goods, the application by defendant to McCormick to induce him to purchase, the refusal of McCormick to do so except in reliance upon Picard’s representations, and a sale based on fraudulent representations of the value of the property, whereby the purchaser was damnified.
The second count is for a breach of warranty of value, by which Picard knowingly, falsely and fraudulently deceived McCormick.
The third count is for false representations concerning the value and quantity of gold in a necklace which Picard, knowing McCormick’s ignorance, induced him to purchase by such representations.
The fourth and fifth counts are framed like the. first, but upon different representations.
The principal objection alleged against these several counts (which is taken on assignment of error and not by demurrer) goes to the materiality of the frauds charged. It, is claimed that an allegation of value, although false, can not be made the ground of an action. .
It is undoubtedly true that value is usually a mere matter of opinion; and that a purchaser must expect that a vendor will seek to enhance his wares, and must disregard his statements of their value. But, while this is generally
An objection was also made that one of the counts averred damages less than one hundred dollars. This objection is not tenable. The counts must always be regarded in law as separate claims, and if the aggregate damages alleged in the'various counts joined exceeds one hundred dollars, the Court has jurisdiction.
Upon the trial, one of the witnesses having detailed the false representations made by Picard to McCormick, con cerning the watches, one of which was set with diamonds on the outside, was asked “ what was said about the jewels?” This was objected to because the declaration alleged no representation about the jewels, but the objection was overruled, and the witness swore Picard said if the watch was smashed up the diamonds would be worth seventy dollars, The question was not improper. A declaration would be improperly framed and needlessly prolix, if it should set out in terms the whole of a conversation from which a jury would be warranted in finding that fraud had been practiced. A pleading should contain allegations of fact, mid not of evidence. The inference from the evidence is one of fact and not of law. The plaintiff was entitled if not required to lay before the jury the whole transaction, so that they might determine from all the facts what might not be so clear from a portion of them. The evidence was proper therefore as forming a part of the transaction. It was very material as tending to show a resort to circumstantial falsehoods, which are, by common experience, more dangerous than mere wholesale assertions, There is no more effectual means of deceiving than the
A bill of sale was produced, which the defendant endeavored to show was meant to be ,in the .name of one Jacob Picard, and not. Isaac Picard, there being some difference of opinion among the witnesses whether the initial used was meant for I. or J. And, as the sale was charged as , made by Isaac Picard, his counsel asked the. Court to charge the jury that the bill of sale was the. evidence of the contract, and could not be contradicted by parol evidence. This the Court refused, and told the jury-that though the contract be in writing, if the defendant had been dishonest in the transaction, the plaintiff might disregard the writing and sue directly for the fraud. This charge was correct. The fraud is the foundation of the action. Isaac Picard, who perpetrated it, was responsible' for it. If employed by some one else it could not exone rate himself, although it might possibly render his principal liable, if guilty, civilly, and possibly as a party to a conspiracy. There was, however, nothing in the case to render such a charge material even if it had been incorrect, The evidence showed no contract except with Isaac Picard, A simple bill of sale does not embody the preliminaries nor the essential terms of the contract in such a way as to exclude parol evidence. It is designed merely to show the transfer of title. If made in the name of J. Picard instead of I. Picard, it- was evidently a very shallow trick, although defendant seems from his remarks to Posenfield to have formed'the idea that if he gave a bill of sale there could be no after concern about it. We are not aware of any rule which determines in the eye of the law any invariable distinction between the English written signs for I. and J.; but if such a distinction were entirely clear, it would not have the effect of discharging a fraudulent contractor who resorted to it as a device for knavery.
There is no error in the proceedings, and the judgment must be afiirmed, with costs.