140 Minn. 180 | Minn. | 1918
In May, 1915, plaintiff owned a farm near the station of Philbrook in Todd county, and some live stock and farm machinery. Defendant, a real estate dealer at Staples and Motley, owned a stock of general merchandise in a store in the village of Altoona, Iowa. Plaintiff and her husband conveyed the farm and personal property to defendant, and he gave plaintiff a bill of sale of the stock of merchandise. In the trade the interest of plaintiff in the farm and personal property was valued at $7,000 and the merchandise stock at $14,000. Plaintiff gave defendant a note for $7,000 secured by a chattel mortgage on the stock. Plaintiff and her husband took possession of the Altoona store in June, 1915, and continued to run it until the stock was taken from them oh foreclosure of the chattel mortgage in the fall of the same year. Plaintiff and her husband then returned to Philbrook. Her husband died soon after. This action was to recover damages for alleged fraudulent representations by defendant that induced plaintiff to make the trade. The trial resulted in a verdict in favor of plaintiff for $4,661.87. Defendant appeals from an order denying his motion in the alternative for judgment notwithstanding the verdict or for a new trial.
The contentions of defendant on this appeal, stated in the order in which we will consider them, are these: (1) There should be judgment in his favor notwithstanding the verdict; (2) the damages awarded are excessive; (3) there was misconduct on the part of plaintiff’s attorney and on the part of certain jurors that was prejudicial to defendant; (4) there were prejudicial errors in various rulings on the admission of evidence.
1. The charges of fraud submitted to the jury by the trial court
April 1, 1915, Leroy Battles owned the Altoona stock of goods. He had a general store at Mitchellville, a town a few miles from Altoona, and ran both stores. He had bought the Altoona stock about a year before, paying $6,300 for it. Within a few months he became dissatisfied, and was looking for a chance to sell or trade. Through an auctioneer of Staples, Battles met the defendant, and the result was a trade of the stock of goods for a farm of defendant near Motley. This was about April 1, 1915, and Battles and defendant both testify that an inventory of the stock and fixtures taken at this time showed the wholesale price to be $13,450. Battles claimed that he had increased the stock from $7,000 at the time he purchased to over $13,000 at the time he sold to defendant. Immediately before the trade he shipped goods from the Mitchellville store to the Altoona store. Defendant took possession of the store, and conducted it through one Immel until the sale to plaintiff. It is clear enough that the Altoona business was not profitable, though neither Battles nor defendant admit this. But-each evidenced a strong desire to get rid of the stock shortly after he purchased it. It was in the latter part of May, 1915, that defendant drove in his -automobile to the farm of plaintiff and her husband and endeavored to persuade them to trade their farm for the stock of goods. Plaintiff testified that he made the representations before mentioned as to the inventory, the value, and the character of the stock, and this must be taken as true. He took plaintiff and her husband to Staples in his car. They executed a deed to the farm, a bill of sale of the personal property, and a note for $7,000 and a chattel mortgage on the
Plaintiff and her husband took possession of the store and proceeded to conduct the same. Plaintiff spent the first week in the store and her son came soon after to work as a clerk. Immel was retained as manager. The stock was kept up, the bills paid, and the payments made to defendant for some two or three months, when it was found impossible to continue to make the payments from the business that was being done. Defendant sold the note and chattel mortgage to a bank in Altoona; plaintiff claims this was done contrary to a promise by defendant, and without the knowledge or consent of plaintiff or her husband; defendant claims that they agreed to the sale. In any event, as before stated, the mortgage was foreclosed by the bank, with the result that plaintiff and her husband lost the stock of goods, as they had already lost their farm.
As we have said, it must be taken as true that defendant represented that the stock inventoried $14,000, that it was worth that amount, and that it was a good, or new, and up-to-date stock. We think also that the evidence made a case for the jury on the question of the falsity of these representations. Indeed it is pretty clear, taking the evident* as a whole, that the stock was old, by no means up-to-date, and not worth anywhere near the amount represented. It was not a saleable
We do not sustain defendant’s contention that the representation as to the value of the stock of goods should not have been submitted to the jury. This was clearly more than a mere expression of opinion, or “trade talk.” It was a representation of a fact, within the knowledge of defendant, and not easily ascertained by plaintiff. Brown v. Andrews, 116 Minn. 150, 133 N. W. 568; Adan v. Steinbrecher, 116 Minn. 174, 133 N. W. 477; Ludowese v. Ainidon, 124 Minn. 288, 144 N. W. 965.
Our conclusion, derived from a study of the entire evidence, is that the case was for the jury. Defendant was not entitled to a directed verdict, nor to'a new trial on the ground of the insufficiency of the evidence to sustain the decision of the jury on the questions on which the right of plaintiff to recover depended.
2. Little need be said as to the claim of excessive damages. No question as to the proper rule as to the measure of damages is involved. While the evidence is not entirely satisfactory, we think it justified a finding that plaintiff was damaged by defendant’s deceit in at least the amount found by the jury.
3. The most serious claim of misconduct is based upon the following facts: The trial took place at Long Prairie in March, 1917, and consumed about a week’s time. The weather was cold and stormy, and the snow deep. The trial judge, plaintiff’s counsel, defendant’s counsel, defendant himself, a number of his witnesses and two of the jurors in the case were stopping at the Reichert Hotel. Plaintiff’s counsel, the county attorney, court reporter and a prominent lawyer of Long Prairie
The claim of misconduct based on the actions of one Tabery in conversing with some of the jurors is not sustained.
The contentions that plaintiff’s counsel was guilty of misconduct by various remarks in his addresses to the jury and during the trial need not be specifically mentioned. We find nothing here that requires a reversal. Insofar as counsel said anything that he ought not to have said, any harm was removed by the trial court’s instructions to the jury.
4. The claims of errors in the rulings on the admission of evidence are many, and for the most part unimportant. We will note but one specifically:
Error is assigned in permitting plaintiff to impeach a witness called by her, Immel, the man who worked for defendant in the store before the sale to plaintiff, and who afterwards managed the store for plaintiff. It is fairly clear that Immel was a hostile witness, and .that plaintiff’s counsel was surprised by his adverse testimony. There was no abuse of discretion in permitting the foundation for impeachment to be laid, and the impeaching evidence. Selover v. Bryant, 54 Minn. 434, 56 N. W. 58, 21 L.R.A. 418, 40 Am. St. 349; 3 Notes on Minn. Reports, 1022; 3 Dunnell, Minn. Dig. § 10356.
We have considered carefully all the other claims of error, and find
Order affirmed.