203 N.W. 667 | Mich. | 1925
Defendants Frank and Edith Hughes were residents of Flint, and were the owners of a grist mill situate at South Whitley, Indiana. They placed it for sale in the hands of defendants Benjamin, who were real estate brokers. The Benjamins sold the mill to plaintiffs, taking residence property in Flint in payment therefor. Plaintiffs moved to South Whitley, and took charge of the mill, and have since operated it. After taking possession of the mill Sutton claims he learned that the Benjamins had misrepresented the value, extent and condition of the mill property, and he brought this action at law to recover his damages. A jury trial resulted in a verdict in his favor of $6,000 against defendants Benjamin. The jury returned a verdict of "no cause" against defendants Hughes.
1. The principal ground of complaint is that the trial court was in error in submitting the case to the jury. It is the claim of defendants that no case was made for the jury. This necessitates an examination, to some extent, of the testimony. The plaintiffs testified that defendant J. Judson Benjamin made the following representations to them concerning the property:
"Q. You may tell the court and jury what was said upon that occasion when Mr. J. Judson Benjamin, your husband, and yourself were present in his office.
"A. Mr. Benjamin said he had this mill property, was a splendid trade for us, and that it was worth, the mill was worth at least $20,000, and that the machinery was in a splendid running condition, belts and engine, boilers, everything in first-class condition, and that the mill property, the land extended back *155 to the river. He also said that the taxes were all paid up to date, and that the insurance was paid up to date, and he said that the grinding business was $36 per day. He said there were no other place in town where they ground feed — and that there was an incumbrance of $9,000 against the mill, and it was held by the Farmers State Bank of South Whitley, Indiana."
Benjamin's representations as to the value of the mill should be regarded as mere expressions of opinion. People v. Jacobs,
2. The court charged the jury:
"I charge you, gentlemen, if you find in favor of the plaintiffs, you will find against whom you find your verdict, whether against one or more than one. If more than one, you will bring in a verdict of whom your judgment will be against, whether against Benjamin, the man who made the representations, or Benjamin and son, whatever his name is, or whether Mr. Hughes and his wife, if you find testimony in the case which fixes liability on those other parties. You will have to do that from the testimony in the case."
It is claimed that this instruction was erroneous because misleading. Counsel's conclusion is based uponBartholomew v. Welch,
3. The final claim is that the verdict is excessive. In this connection it may be well to state the exact terms of the trade. The plaintiffs conveyed to defendant two residence properties in the city of Flint, which they valued at the sum of $17,000. Upon these properties there were two mortgages aggregating the sum of $5,360, leaving an aggregate equity in the properties of $11,640. In return for these properties the plaintiffs received the mill with a mortgage thereon of $9,000. The mill was shown to be fairly worth $4,500. In addition to this plaintiffs received $5,000 in cash.
It is defendants' claim that the testimony shows plaintiffs' equities were worth $8,640. That under these circumstances they lost the difference between that sum and the $5,000 in cash they received, which would be $3,640, and as the verdict was for $6,000 it was excessive. It is the claim of plaintiffs that their real estate was worth $11,640, over and above the mortgages. The plaintiffs' damages were this sum less the $5,000 which they received in cash, which would be $6,400, and, therefore, a judgment for $6,000 was not excessive. Upon the question of damages neither party counted the mill as worth anything, as it was shown to be mortgaged for more than its value. The question of the value of plaintiffs' real estate was for the jury. They gave plaintiffs a verdict for $6,000. They must, therefore, have found in accordance with plaintiffs' contention.
The judgment of the trial court is affirmed.
McDONALD, C.J., and CLARK, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ., concurred. *158