Angell v. Loomis

• Decision Date: 26 July 1893
• Citation: 97 Mich. 5,55 N.W. 1008
• Court: Michigan Supreme Court
• Parties: ANGELL v. LOOMIS.

55 N.W. 1008

97 Mich. 5

ANGELL v. LOOMIS.

Supreme Court of Michigan

July 26, 1893

Error to circuit court, Eaton county; Frank A. Hooker, Judge.

Action by Edmund W. Angell against Frank S. Loomis to recover on account of misrepresentations the amount paid on a contract. Plaintiff had judgment, and defendant brings error. Affirmed.

Where a contract as originally made is correctly set forth in the declaration, an objection to its admission in evidence because of an alleged variance in a matter not material to the issue involved in the suit, evidenced by a subsequent agreement made and attached to the contract after its execution, is untenable.

The other facts fully appear in the following statement by GRANT, J.:

Defendant's brother was the president of the Loomis National Library Association of Richmond, Va. In the absence of his brother defendant appears to have been acting for the association and was the only person with whom the plaintiff dealt. June 16, 1887, plaintiff made a written contract with this association, by which he was to become its manager for certain counties in the state of Michigan, named in the contract.

The clause of the contract, material to this case, reads as follows: "Said second party also agrees to commence his work with a stock of not less than two thousand (2,000) dollars' worth of goods, and that he shall pay at least nine hundred (900) dollars to said first party on receipt of said goods, and make such disposition of the money to be collected for them under this contract as is hereinafter set forth. It is also agreed that during the continuance of this agreement said second party shall retain one dollar and a half ($1.50) out of each paid-up initiation fee, for the purpose of using to get new goods as they may be desired or needed from time to time. That, in consideration of the faithful performance of his aforesaid duties, he shall, from the remaining sums so collected by him from paid-up initiation fees, draw as salary an amount not exceeding one hundred and sixty-six and sixty-six hundredths (166.66) dollars per month, and send the surplus that exists to said first party. It is also agreed that said second party shall withdraw from this business all the capital put in by him at the end of one year, and resign such position if he so desires, first party to have one month notice of such intention."

Plaintiff's evidence showed that he was ignorant of the value of the books, and relied upon the representations made by defendant. During the negotiations defendant explained to plaintiff why he was required to advance the money, which he said would be repaid to him at the expiration of the contract; that he would receive books to the value of $2,000, which would be security for such repayment. Defendant lived in Vermontville, Mich., and July 20, 1887, in response to a message from defendant, plaintiff went to Vermontville, to receive and examine the books. He then asked defendant if he thought they were worth $2,000, to which defendant replied that he did not think they were, but that they were worth about $1,200, and that the wholesale price was from $.90 to $1.10 each, whereupon plaintiff paid $700, and gave his notes for $200. The books were shipped to plaintiff at Grand Rapids, and he entered upon the business provided for in the contract, which he continued till some time in August. He then learned that the books were worth at wholesale only $.22 each. Plaintiff then went to defendant at Vermontville, and demanded the money back. Defendant told him that he did not think that he had made as thorough a trial as he ought to; told him to try it a while longer, and if he could not make it work he would give him back his money. Plaintiff went back to Grand Rapids, and remained till the last of August. Meanwhile he wrote two letters to defendant, which were not answered. He then learned that defendant had removed to Chicago. He then packed up the books, and deposited them in the depot of the Detroit &amp Milwaukee Railroad Company at Grand Rapids, but without any direction marked thereon, or any instructions to the depot master what to do with them. He then went to Chicago, found the defendant, again demanded his money, and informed him that the books were at this depot, subject to his order. He then brought suit to recover back the $700 on the ground of the fraudulent representations as to the value and price of the books.

The declaration contained a special count and the common counts. Plea, the general issue. Verdict and judgment for plaintiff. Eight errors are assigned.

H. F. Pennington, for appellant.

R. A. Hawley and Huggett & Smith, for appellee.

GRANT, J., (after stating the facts.)

1. Objection was taken to the admission of the contract in evidence, because of a variance between the contract set up in the declaration and the one introduced in evidence. The only variance consisted in the change of counties. By a subsequent agreement, indorsed upon the back of the original agreement, certain other counties were substituted for those mentioned in it. The objection is not good, for two reasons (1) The change was immaterial, and in no manner affected the issue involved. That part of the contract which was material was correctly set forth. (2) Plaintiff was entitled to recover on the common counts, under which the contract was admissible. Johnson v....