Barnard v. Colwell

Citation39 Mich. 215
CourtSupreme Court of Michigan
Decision Date21 June 1878
PartiesEzra P. Barnard et al. v. Lewis H. Colwell

Submitted June 20, 1878

Error to Montcalm.

Trespass on the case. Plaintiffs bring error.

Judgment reversed and the cause remanded for trial. No costs are awarded in this court.

Charles B. Pratt and John C. Fitz Gerald for plaintiffs in error cited in support of the declaration Pickard v McCormick, 11 Mich. 75; Ives v. Carter, 24 Conn. 392; Benton v. Pratt, 2 Wend. 385; Pendergast v. Reed, 29 Md. 398; Somers v Richards, 46 Vt. 170; where one who agrees to sell property for what it cost him, obtains more by false representations as to the cost, the purchaser has a good ground of action against him, Morehead v. Eades, 3 Bush 122; 1 Story's Eq. Jur., § 203 f; Green's Adm'r v. Bryant, 2 Kelly (Ga.), 66; Van Epps v. Harrison, 5 Hill 70; Page v. Parker, 43 N. H., 369; Sanford v. Handy, 23 Wend. 268; Willink v. Vanderveer, 1 Barb. 599; Matlock v. Todd, 19 Ind. 134; Ekins v. Tresham, 1 Lev. 102; Risney v. Selby, 1 Salk. 211; Bagshaw v. Seymour, 4 C. B. (N. S.), 873; Clarke v. Dickson, 6 id. 453; Bedford v. Bagshaw, 4 H. & W., 538; Paisley v. Freeman, 2 Smith's Lead. Cas., 186; White v. Sutherland, 64 Ill. 181; Smith v. Countryman, 30 N. Y., 681; one who makes a contract has an absolute right to rely on express statements of existing facts not known to himself and made by the opposite party as a basis of mutual engagements, Mead v. Bunn, 32 N. Y., 280; McClellan v. Scott, 24 Wis. 87; Directors etc. v. Kisch, 2 H. L., 120; Hazard v. Irwin, 18 Pick. 104; Case v. Ayers, 65 Ill. 142; Allen v. Hart, 72 Ill. 104.

Ellsworth, Lewis & Sapp for defendant in error.

OPINION

Cooley, J.

The plaintiffs filed in this case a declaration on the special case, setting forth that on the 12th day of October, 1875, defendant was the owner of certain real estate which he agreed to sell to the plaintiffs for the same sum of money which he had paid for it, but falsely and fraudulently pretended he had paid for it the sum of four thousand dollars; that plaintiffs agreed to buy said real estate and to pay defendant therefor what he had paid for it, and that deceived by defendant's fraudulent representations they paid defendant the sum of four thousand dollars; that in fact defendant only paid seventeen hundred dollars for said real estate, whereby said plaintiffs have been damnified, etc.

No doubt the pleader intended this as a count for a tort, and insisting upon it as such in the court below, judgment went against him on the ground that no cause of action was alleged. The reason was that the false affirmation relating to the price paid for the land was not one upon which the plaintiffs had a right to rely.

Had the plaintiffs insisted upon their declaration as a sufficient count for money had and received by defendant to their use probably the ruling in the circuit court would have been different. The recital of facts shows a bargain for the lands at a...

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14 cases
  • Addy v. Stewart
    • United States
    • Idaho Supreme Court
    • 20 Junio 1949
    ... ... amount. Stanhope v. Swafford, 77 Iowa 594, 42 N.W ... 450; Holtz v. Schmidt, 59 N.Y. 253; Barnard v ... Colwell, 39 Mich. 215; Martin v. Hutton, 90 ... Neb. 34, 132 N.W. 727, 36 L.R.A.,N.S., 602; Kimball v ... Cunningham, 4 Mass. 502, 3 ... ...
  • Page Farmers' Elevator Co. v. Thompson
    • United States
    • North Dakota Supreme Court
    • 21 Junio 1910
    ...may be had under the latter theory was expressly held by the Michigan court under facts precisely like those in the case at bar. Barnard v. Colwell, 39 Mich. 215. By allegations of the complaint the defendant is sufficiently apprised of the fact that plaintiff claims the right to recover th......
  • Stout v. Carruthersville Hardware Co.
    • United States
    • Missouri Court of Appeals
    • 12 Mayo 1908
    ...Bliss v. Thompson, 4 Mass. 488; Norden v. Jones, 33 Wis. 600, 14 Am. Rep. 782; Johnson v. Seymour, 79 Mich. 156, 44 N. W. 344; Barnard v. Colwell, 39 Mich. 215; Holtz v. Schmidt, 59 N. Y. 253; Lockwood v. Kelsea, 41 N. H. 185; D'Utricht v. Melchor, 1 Dall. (Pa.) 428, 1 L. Ed. 208; James v. ......
  • Ripka v. Gwinn
    • United States
    • Court of Chancery of Delaware
    • 25 Julio 1923
    ...than cost. Gassett v. Glazier, 165 Mass. 473, 43 N.E. 193; Kohl v. Taylor, 62 Wash. 678, 114 Pac. 874, 35 L. R. A. (N.S.) 174; Barnard v. Colwell, 39 Mich. 215; Pendergast v. Reed, 29 Md. 398, 96 Am. 539. See, also, Lord v. French, 61 Me. 420. Taking all the allegations of the amended bill ......
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