Williamson v. Hannan, Docket No. 148

Docket No. 148 | Mich. | Sep 27, 1917

Ostrander, C. J.

(after stating the facts). What was purchased by plaintiff and sold to her was not merely furniture and furnishings for a rooming house, but was the furniture and furnishings of a rooming house doing business — the furniture and furnishings in use by tenants in a rooming house. It is true the contract, reduced to writing, does not mention good will, or business, as consideration for what plaintiff was to pay. It does describe the property as per inventory and as “contained in the rooming house located at No. 485 Grand River avenue, second and third floors, Detroit, Michigan.”

We cannot say, therefore, that if representations such as are alleged to have been made were made, and were false, they were not material. I doubt, however, if it can be fairly said there is testimony tending to ’ sustain the allegation that the representation that the neighborhood was respectable was false. It is doubtful, too, whether defendant Gainey is shown by the testimony to have represented, as a fact, the income of the rooming house business. The testimony indicates, rather, that for the information concerning the rates for which rooms were rented, as well as for that concerning the cost of operation, Gainey, to the knowledge, and in the presence, of plaintiff, relied upon— -that both relied upon — the representations of Devlin. That would be the usual thing to do. I think there is no evidence of the confederation of Gainey and Devlin to deceive plaintiff.

I do not find testimony tending to prove that Mr. Gainey made any representations concerning the character of the inmates of the house, or that he expressed the opinion that any roomer would remain in the house for any period of time. There is no testimony tending to prove that he knew the reputation or the character of any roomer. His silence, therefore, upon that subject would be no evidence of fraudulent design.

In the motion for a new trial, one reason assigned is that the verdict was against the weight' of evidence. But in the brief no point is made that there ought to be a reversal here because the verdict is against the weight of evidence.

Plainly, the plaintiff’s case is one for damages for injury suffered on account of the alleged fraud and deceit practiced by the defendants. As affecting the cause of action, it is immaterial whether plaintiff did or did not affirm or disaffirm the contract, whatever may have been the effect, as evidence, of the alleged disaffirmance. It is to be noticed, too, that when the alleged disaffirmance was made, or attempted, plaintiff had not learned either that the neighborhood or the roomers were not respectable, and did not make either of these facts a reason for believing herself defrauded. The evidence is convincing that she did not disaffirm at any time, but the course taken at the trial upon this subject and the submission to the jury of the question whether there was a rescission was not, I think, reversible error since, taken with the instruction concerning the measure of damages, it was harmless. The defendants requested the court to charge upon the subject of damages (protesting, of course, that no verdict for plaintiff ought to be returned), and the court instructed, that the recovery must be limited to the sum of nine hundred dollars, with interest and costs, concluding the request with the statement, “There is no' testimony of any other damages incurred.”

The position taken by counsel for the defendants other than Devlin, the position indicated in requests to charge and in various motions, was that they could not be held liable unless the statements made by Gainey were known to be false and were made with intent to deceive and defraud. Upon this point the trial court did not entirely agree with them as the requests to charge refused and the charge given show. The requests preferred, or the substance and effect of them, should have been given. Aldrich v. Scribner, 154 Mich. 23" court="Mich." date_filed="1908-09-10" href="https://app.midpage.ai/document/aldrich-v-scribner-7944938?utm_source=webapp" opinion_id="7944938">154 Mich. 23.

As to defendant Devlin, there is testimony tending to prove some of the alleged representations and their falsity. No reason appears for reversing the judgment as to him. As to the other defendants it is reversed and á new trial granted. As defendants joined in the appeal and in presenting the case here, no costs will be awarded.

Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred. Brooke, J., did not sit.