172 Mich. 91 | Mich. | 1912
This is an action brought to recover damages which the plaintiff claims he has sustained in the purchase of 40 acres of land from the defendant, by reason of the alleged false and fraudulent representations made by the defendant relating to the quality and value of the land for farming purposes, which representations the plaintiff claims he relied upon. The plaintiff recovered a verdict and judgment for $534, and the defendant has brought the case here upon writ of error. There are 51 assignments of error. The appellant has not complied with Rule 40 of this court by making a clear and concise statement of the facts of the case distinct from argument, and we have found it unsafe to follow counsel in his alleged statement of facts, as it appears to be based largely upon defendant’s testimony and theory. ' Counsel has also failed to comply with Rule 36, in that the pages of the record where exceptions may be found are not stated in the record, nor in the assignments of error. We have, however, with the aid of the briefs, been able, by much labor, to search out the errors relied upon. The court in its charge to the jury made a statement of the claims of the respective parties as furnished by them, from which wé glean the following: That in the early spring of 1908 the plaintiff came to Allegan, and made arrangements with the defendant, or with one Pirro and defendant to
The defendant pleaded the general issue, and claims
There was testimony tending to support the claims of the respective parties, and there being a sharp conflict in the testimony, the questions of fact were for the jury to consider. We gather from the record that the plaintiff went into the occupancy of this land in the spring of 1909, and cleared and cultivated some of it, and in the year 1910 he built a house thereon, and has continued to live there since. It will be noted that the plaintiff does not seek to rescind the sale, but seeks to recover damages for the fraud which he claims the defendant was guilty of in the transaction.
In the discussion of the assignments of error appellant treats them as follows:
(1) Error calculated to prejudice defendant’s case by arousing undue sympathy for the plaintiff.
(2) Error in cross-examination calculated to prejudice the jury against the defendant and some of his witnesses.
(3) Error in the admission of evidence calculated to mislead and confuse the jury.
(4) Error in the introduction and rejection of evidence bearing upon the value of the land, and matters affecting said land.
(5) Error in charge of the court.
First. Taking up the first point, appellant claims that the record discloses a persistent effort on the part of plaintiff’s counsel to arouse prejudice of the jury against de
“Guiseppi Yanelli, a married man, his wife being with him, lived in Chicago, and these two people had something like $800 which they had saved from his earnings, and from the money his wife earned working in the factory.”
Upon the objection being made, the court remarked that it did not make any difference, “Better leave it out,” whereupon plaintiff’s attorney said that he wanted to give the jury an idea of what the case was about, that they had $300 which they had saved at that time, and which they desired to invest in a farm. It was material to show that the plaintiff had and paid $300 on the purchase. How he had earned or obtained it was probably immaterial, but we do not consider the statement of sufficient importance to be discussed, and the remark of the court that “it didn’t make any difference” probably set the matter at rest in the minds of the jurors.
The fourth, fifth, sixth, and seventh assignments of error complain because the court permitted the plaintiff and his wife to testify that plaintiff had to work elsewhere than on the farm the first winter, and that they were forced to seek help from the neighbors and from the town- , ship officers. Bearing in mind that the declaration alleges that the land had been sold to plaintiff as good farming land, and that it would grow the numerous crops stated, the plaintiff sought to show the extent of the labor and effort made to produce crops, that enough could not be raised to support the family, and the necessity of going elsewhere to work, and the fact that the family had to be assisted by others. We think that whether the plaintiff was able to live on the place, and the amount that could be produced there, were material questions, as well as the efforts made by the plaintiff and family in that direction. While some of the testimony here complained of was rather
Second. The alleged errors in cross-examination complained of relate to the cross-examination of the defendant. It should be borne in mind that it was the claim of the plaintiff that the defendant and his alleged agent, Pirro, had conspired to cheat and defraud the plaintiff by deceit and false representations. It also appeared that the defendant was, and for some time had been, engaged quite extensively in the real estate business, and had advertised his business in the newspapers and by circulars. After testifying as to the value of the land in question, the defendant was cross-examined as follows:
“Q. Didn’t you sell land of the same quality as this for a great deal less than $15 per acre ?
“A. I don’t know where. * * *
_ “Q. November 16, 1905, didn’t you insert these advertisements in one of the Chicago papers:
“ ‘To close out quick, I am offering a good forty-acre farm close to Allegan courthouse, on the main road, all nice and dry, level land, with perfect title, for only $3001 ’
“(Objected to as immaterial; objection overruled and exception.)
“A. I may have done so. I don’t say I didn’t.
“Q. Did you offer this place for sale':
“ ‘ Highly improved forty-acre farm on main road, telephone, daily mail. This is two miles to Allegan, county seat of Allegan county. The farm is of nice, smooth, level land, no blow-sand or swamp. About 18 acres cleared and no hillside cultivation, all good black soil. Balance second growth wood; a first-class log house, lath and plastered, a small stable, good, poultry house, apples and peaches in bearing. Owner is forced to sell; has cut price down to $600.00. $100.00 or more cash, balance to suit you. Will furnish abstract free, showing title to be perfect. Take advantage of the cheap New Year rates — round trip from Chicago to Allegan $6.00. Come and see the biggest bargain ever offered in Allegan ?’
“ (Objection for the same reason; overruled; exception.)
“A. I don’t remember. I may have done so. * * *
“The Court: Where is that with reference to this land ?
*100 “Plaintiff’s Attorney: I am trying to find out.
“A. I don’t know any such place.
. “Q. Did you sometimes offer places in the paper you didn’t have ?
“A. I have done so; yes, sir.
“Q. Put in different descriptions of land you didn’t have, and didn’t know of ?
A. I have.
“Q. Is that a sort of drawing card ?
“A. Simply to get a mailing list.
“Q. Then I understand it is your practice to insert in the papers these descriptions of land that don’t exist ?
“A. Not a practice. I have done it probably a half dozen times. (Motion by defendant’s attorney to strike out as immaterial and irrelevant; overruled; exception.)
“Q. Sometimes you make false printed statements in newspapers as to quality of land, and descriptions of land, you haven’t got for sale?
“ A. You can take it any way you are a mind to.
“Q. I am asking you.
“A. I have done that — written those men and paid the paper the price, if I didn’t have them for sale.
“Q. So the property described therein really never existed ?
“A. It may have existed. I won’t say it did or not.
“Q. It didn’t cover anything you had for sale ?
“A. No, sir. (Same objection; ruling and exception.)
“Q. You sometimes sent out circulars which falsely stated the amount a man could make on a certain parcel of land ? (Objected to as immaterial and irrelevant.)
“ The Court: No; it is charged in here, misrepresentations.
“Defendant’s Attorney: There is no tie to link the two.
“ The Court: I don’t know about that. There is quite a latitude of cross-examination in cases of this kind. Go ahead. (Exception.)”
The foregoing is a fair sample of the testimony complained of.
Bearing in mind that this was the cross-examination of a defendant charged with deceit and false representations relating to the quality and character of land sold by him, we cannot say that there was an abuse of discretion or
Third. Alleged error in the admission of evidence calculated to mislead and confuse the jury. Complaint is here made that the plaintiff was allowed to show that he had built a house on the land, and had run in debt for the material. The record shows that the plaintiff had testified that defendant had promised to build a house at the expense of plaintiff. This was objected to by defendant as immaterial and irrelevant, whereupon plaintiff’s attorney said that to clear the record he did not care anything about the testimony, and the court ordered it stricken out, and the following occurred:
“Q. The talk between Mr. Littlejohn and Yanelli, as to the house, I don’t care anything about that. There was no house on this land, and you built a house ?
“A. I built a house, bought the lumber at Hamilton.
“Q. How much?
*102 “Defendants Attorney: I object to going into this, as to the house.
"The Court: He may state that.
"Defendants Attorney (continuing): On the ground that it is immaterial and irrelevant, and has no bearing on the case. Note an exception.
"The Court: Let it stand.
“Q. How much did you pay for the lumber to build the house ?
"Defendants Attorney: Same objection.
"The Court: He may state that.
"A. I didn’t pay for it.
etDefendants Attorney: I move to strike that out.
"Q. How much did you buy ?
"A. One hundred and twenty-five dollars or $121.
"The Court: That don’t seem to have anything to do with the case at all.
"Plaintiff's Attorney: Undoubtedly they will swear witnesses to prove the value of this property, and we wish to have the jury understand the improvements that have been made, and what the cost of them was. ^
^ "The Court: That would not be a proper question anyway. Strike out the balance about the house.”
It is difficult to understand just what the court intended to strike out, whether all that had been testified to after the previous ruling, or only the latter part thereof. We do not think that it was error to permit the then condition of the premises to be shown, and who had made the improvements, especially in view of the evidence on behalf of defendant of numerous witnesses, who had examined the premises just before the trial. We do not think that the jury was misled by any evidence about the house, as the court plainly charged that the proper measure of damages would be the difference between the actual value of the land at the time of the purchase and what its value would have been had it been of the quality and condition represented. Aldrich v. Scribner, 154 Mich. 23 (117 N. W. 581, 18 L. R. A. [N. S.] 379); Painter v. Lebanon Land Co., 164 Mich. 260 (127 N. W. 739, 130 N. W. 205). We do not think that there is any merit in this contention.
We have carefully examined the record and the assignments of error relating to this subject, and we are of the opinion that the court did not err therein. Bearing in mind that the declaration alleges' that the defendant had represented the land to be valuable, and suitable as farming land, and that it was sold for a home, upon which a living could be made by suitable treatment, it was proper to receive evidence, not only of climatic or frosty conditions there, but . of other land similarly situated in the neighborhood; that whole sections of land in that vicinity (including the land in question) were so poor in quality that they had been abandoned for farming purposes. These questions were gone into by both .parties, and in the introduction of evidence we do not think that the defendant was discriminated against by the court, as is claimed by appellant. Jackson v. Armstrong, 50 Mich. 65 (14 N. W. 702).
Fifth. Alleged error in the charge.
It is here claimed that the court failed to charge the jury properly on the question of diligence that the plaintiff should use before he would be authorized to rely on representations made by the defendant. Among other things, the defendant requested the court to charge the jury as follows:
“If you should find in this case that the plaintiff had employed an attorney to investigate this land, and report to him thereon, and that said attorney had reported to plaintiff, before he completed his purchase in this case, that said land was poor land, and as good land could be bought in this locality, to wit, Allegan county, for $5 per acre, and advised them not to buy the land, and warned them against the representations of Pirro, and you further find that Pirro was a stranger to them, and that defendant was a stranger to them, then I charge you that plaintiff would not be using reasonable diligence, under such circumstances, in relying upon the statements of either*104 Pirro or defendant in regard to the value, or productiveness of said land; if he went ahead under such circumstances and purchased the said land, he cannot base an action on such representations.”
Theré was evidence tending to show the facts embraced in this request, but we do not think that appellant was entitled to have the request given. It was a question for the jury to determine whether or not, under the circumstances, the plaintiff had exercised reasonable diligence. The court did charge as follows:
“ I charge you that it is an essential element in a case of this nature, and it is necessary for the plaintiff to show, that he not only relied upon the statements made to him, if you find such statements were made, as alleged in his declaration, but that in so relying he was using reasonable diligence, under the circumstances in this case; and, if you do not so find, your verdict must be for the defendant.”
We think that defendant has no cause to complain of this branch of the charge. Bearing in mind the quality of the facts and the character of the inquiry, it was certainly not a question of law that the truth was discoverable by the plaintiff in any particular way. Jackson v. Armstrong, supra; Swimm v. Bush, 23 Mich. 99; Starkweather v. Benjamin, 32 Mich. 305; Holcomb v. Noble, 69 Mich. 396 (37 N. W. 497); Smith v. McDonald, 139 Mich. 225 (102 N. W. 738); Smith v. Werkheiser, 152 Mich. 177 (115 N. W. 964, 15 L. R. A. [N. S.] 1092, 125 Am. St. Rep. 406).
A defrauded party does not owe to the party who defrauds him an obligation to use diligence to discover the fraud. Lewis v. Jacobs, 153 Mich. 664 (117 N. W. 325). It appears that plaintiff did not rely upon the advice and statements of Barassa, the attorney, but acted in disregard of such advice. Had his attorney advised him to purchase the land, and had he relied upon such advice, then the defendant would not have been liable: but the fact that Barassa advised him not to purchase, and that he did
Although defendant made no motion for a new trial, he claims that the verdict was excessive, and that the court erred in submitting the subject of the measure of damages to the jury in the following part of the charge:
“The question here for you to decide is simply this: Did Mr. Littlejohn make the representations that the plaintiff claims were made to him, about the farm, about its value, about what it would grow, what it was worth for farming purposes ? Did he make those representations to the plaintiff, before he bought the land, at any time before he bought the land ? Did plaintiff believe and rely upon those representations, and pay his money upon those representations,'and take the land? Were those representations fraudulent and calculated to deceive the plaintiff ? Has the plaintiff been deceived in relying on those representations and paying his money ? He has got his deed and given a mortgage back. He paid $300 cash and gave a mortgage for $300 more — that is, $600 that he has got in it. The mortgage in this case stands good against thé land. There is a $300 mortgage, with no indorsements of payment, on the land. So we might assume that the mortgage still exists on that land. I say, if those representations were made, and he believed them, and they were calculated to deceive and did deceive him, as to the value of it, and the plaintiff has been defrauded by it, and damaged, by it, then he is entitled to receive, as I told you, the difference between what the proof shows to you is the actual value of the land and what it would have been if it had been as represented, as the plaintiff has claimed.”
The position of the defendant relating to the mortgage was rather equivocal. It is true that he stated that the plaintiff would have to pay him $34. It also appeared that the $83 paid in February, 1909, had never been indorsed on notes or the mortgage. Most of the amount secured by the mortgage was yet to become due, when defendant testified in the fall of 1911, and defendant
“ The plaintiff has paid me on this land $383. I gave him a receipt for it. I still hold his notes and mortgage for $300. The notes were for $50 each. He don’t owe me anything now. I offered him his deed through Lemoine. The mortgage has not been discharged nor notes canceled. I don’t think I could collect them until they became due. I guess I could foreclose. I never foreclosed a mortgage, and am not familiar with it.”
Defendant nowhere offered to surrender the notes and mortgage, or declare them paid. We are not satisfied that the court erred in treating the notes and mortgage as a subsisting claim against the plaintiff, and against the land.
Such being the situation, there was evidence, which, if believed by the jury, was sufficient to support the verdict. We find no reversible error in the record, and the judgment of the circuit court is affirmed.