15 Mich. 265 (Mich. 1867), Warren v. Cole

Citation:15 Mich. 265
Opinion Judge:Campbell J.:
Party Name:Henry Warren v. Hiram F. Cole and another
Attorney:C. A. Stacy, for plaintiff in error: A. L. Millerd, for defendant in error:
Judge Panel:Campbell, J. Cooley, J. and Christiancy, J. concurred. Martin, Ch. J. did not sit in this case.
Case Date:April 03, 1867
Court:Supreme Court of Michigan
 
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Page 265

15 Mich. 265 (Mich. 1867)

Henry Warren

v.

Hiram F. Cole and another

Supreme Court of Michigan

April 3, 1867

Heard January 12, 1867

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Error to Lenawee circuit.

This was an action to recover damages for an alleged deceit practiced by plaintiff in error upon defendant in error, in the sale of two patent rights for the making of soap. Judgment was rendered for the plaintiff below. The facts are sufficiently stated in the opinion.

The following are the assignments of error covered by the opinion:

1. That the court erred in charging and instructing the jury that if the fraud was proved on the part of the defendant to be a gross one or aggravated, they will be justified in imposing exemplary or punitive damages.

2. That the court erred in charging and instructing the jury that they might also, in estimating the plaintiff's damages, take into consideration his expenses of carrying on and prosecuting his suit, including counsel fees.

3. That the court erred in refusing to instruct and charge the jury, as requested by the defendant's counsel, that if the jury believed from the evidence that the plaintiffs had disaffirmed the contract, that then the plaintiffs could not recover in this form of action; and also erred in charging and instructing the jury that unless such disaffirmance was acceded to or acted upon by the defendant, or the consideration money restored on request, any act of disaffirmance in evidence in this case, on the part of the plaintiffs, would not preclude the plaintiffs from maintaining this action.

4. That the court erred in refusing to charge and instruct the jury, as requested by the counsel for the defendant, that the conveyance of the 17th October, 1863, conveyed to the plaintiffs all the rights of the defendant to his patent of February 9th, 1864, to the washing and jelly soap for the county of Cuyahoga, and invested the plaintiffs with all the rights they would have had if the patent had been granted before the sale to the plaintiffs.

Judgment reversed, with costs, and a new trial granted.

C. A. Stacy, for plaintiff in error:

1. In all cases of contract where fraud is charged or has been committed, the contract is voidable, at the election of the injured party: 1 Doug. 330.

a. If the defrauded party elects to affirm the contract, he is bound by it in all respects. If he elects to rescind it, from that moment it becomes void, and neither party can maintain any rights under it: 4 Mich. 508; 2 Parsons on Con., 780.

b. The party defrauded must rescind as soon as circumstances permit after the discovery of the fraud: 1 Denio 69; 24 Wend. 74.

c. Generally an offer to return the property received is as effectual as actually returning it: 5 Black. 225; 9 Porter 420.

d. When, instead of paying money for an article, one delivers some other article in exchange, if the one of whom he purchases be guilty of fraud, he may return, or offer to return, the whole consideration which he received, and maintain trover for the chattels he gave; otherwise, his remedy is by action on the case for the deceit, and not trover for the consideration: 4 Mass. 502; 3 Esp. 83; Sedg. on Dam., 562; 3 Hill 333; 8 Barb. 9, 18; 1 Hill 484; 4 Denio 584.

2. The court erred in charging the jury that they might, in addition to punitive or exemplary damages, also, in estimating the plaintiff's damages, take into consideration his expenses of carrying on and prosecuting his suit, including counsel fees.

In the theory of the law, the taxed costs are full indemnity for the expenses of a suit: 13 M. and W., 47; 5 Wend. 535; 23 Id. 425; 11 Pick. 378; 4 Black. 277; 13 How. 363.

This erroneous direction in cases where, like this, the jury had the right to give compensatory damages, will require the court to reverse the judgment, as they can not assume that the intention of the jury was to give vindictive damages rather than compensatory: Sedg. on Dam., 529...

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