Boss v. Tomaras , 241 Mich. 540 ( 1928 )

On June 26, 1926, defendants sold a farm of 60 acres in Muskegon county, together with certain farm tools, for a consideration of $4,200, and took in part payment thereof a house and lot in Muskegon for $1,850. A few months later plaintiffs discovered that defendants' representations with reference to the quality of the soil, the extent of the wood land, and the condition of the farm tools were false, and they instituted this suit to recover their damages. The matter was heard before a jury and a judgment rendered for defendants. Plaintiffs bring error and complain of certain instructions of the trial court to the jury:

"It is just as much a fraud for a man to make statements of which he has no knowledge in a reckless disregard of truth, as to make statements knowing them to be false; and if you find that the statements were made by the defendants, or by their agents, March or Lincoln, and were false, it will not make any difference whether the defendants, or their agents making them, knew they were false, or whether they were made recklessly."

We think this was a fair statement of the law and is in accord with the holding of the cases which counsel cite.

"I also instruct you that if the defendants, through their agents, made such representations as to the value of this farm and personal property thereon, as claimed by the plaintiffs, then you will next consider and determine whether the plaintiff knew, or had any means of knowing, such representations were false."

The portion of this instruction complained of is the concluding sentence, "or had any means of knowing, such representations were false." This instruction placed upon plaintiffs a greater duty than the law does. A fair inference from the sentence complained of is that if plaintiffs did have the means of knowing they should be diligent and discover the untruthfulness of the representations. If this were the rule the consequences following nearly every fraud might be avoided by the defendant. John Schweyer Co. v. Mellon, 196 Mich. 590;Schnepper v. Halleb, 227 Mich. 455.

"I also instruct you that the burden is upon the plaintiff to prove that the defendants, or their agents, H. Bruce March and Roy Lincoln, or either of them. did defraud the plaintiffs of some of their property goods, or chattels, and unless the plaintiffs have made this proof by a preponderance of the evidence then you should find for the defendants."

While this instruction was not very relevant to the conditions being considered, we are unable to see anything very injurious in it.

"I also instruct you that if, upon the whole evidence in the case, the conduct of Gust Tomaras and his wife, and Roy Lincoln and H. Bruce March, as proven by the testimony, is as consistent with an honest purpose as with a fraudulent purpose, you should consider that no fraudulent purpose on their part has been proven, and if not proven, then you should return a verdict in the defendants' favor."

Counsel complains that this instruction places upon the plaintiffs the burden of proving a fraudulent intent on the part of the defendants, or their agents, in order to entitle them to recover. It was unnecessary for plaintiffs to prove a fraudulent purpose or intent upon the part of defendants, or those representing them. If defendants made representations to plaintiffs with reference to the value and condition of the farm and the personal property, and plaintiffs relied and acted upon them to their damage, and they were false, the purpose or intention of defendants in making the representations would be immaterial. Converse v. Blumrich,14 Mich. 109 (90 Am. Dec. 230); Aldrich v. Scribner, 154 Mich. 23 (18 L.R.A. [N. S.] 379); Weinberg v. Ladd, 199 Mich. 164; Mulheron v. Koppin Co., 221 Mich. 187; Rosenberg v.Cyrowski, 227 Mich. 508.

For the errors indicated the judgment is reversed, and a new trial granted.

The foregoing opinion was prepared by the late Justice BIRD and is now adopted as the opinion of the court.

FELLOWS, WIEST, CLARK, McDONALD, and SHARPE, JJ., concurred. FLANNIGAN, C.J., did not sit.

The late Justice SNOW took no part in this decision.