Beebe v. Knapp

• Citation: 28 Mich. 53
• Court: Supreme Court of Michigan
• Decision Date: 08 October 1873
• Parties: George T. Beebe and another v. Hubbard Knapp

28 Mich. 53

George T. Beebe and another v. Hubbard Knapp

Supreme Court of Michigan

October 8, 1873

Heard July 23, 1873 [Syllabus Material]

Error to Kalamazoo Circuit.

Case. Defendant brings error. Reversed.

Judgment reversed, and a new trial awarded.

Edwards & Sherwood, for plaintiffs in error.

Severens Potter & Boudeman, for defendant in error cited, on the question of the necessity of proving that defendants knew the representations made by them to be false, the following authorities: Converse v. Blumrich, 14 Mich. 123; Marsh v. Falker, 40 N. Y., 562; Bankhead v. Alloway, 6 Coldw. (Tenn.), 56; Cabot v. Christie, 42 Vt. 121; Fisher v. Mellen, 103 Mass. 503; Wheelden v. Lowell, 50 Me. 499; Thomas v. McCann, 4 B. Mon., 601; Lockridge v. Foster, 4 Scam. 569; Dunbar v. Bonested, 3 Seam. 32; Van Arsdale v. Howard, 5 Ala. 596; Munroe v. Pritchett, 16 Ala. 785; Parham v. Randolph, 4 How. (Miss.), 435; Buford v. Caldwell, 3 Mo. 477; and Snyder v. Findley, Coxe, 48.

OPINION

Christiancy, Ch. J.

This was an action brought by defendant in error in the Kalamazoo circuit court.

The declaration contains two counts. The first sets forth, substantially, that on the 14th day of May, 1869, the plaintiff, at the special instance and request of the defendants, bargained with them to exchange a certain span of horses of the plaintiff's, of the value of three hundred and seventy-five dollars for a note held by defendants given for three hundred dollars, and seventy-five dollars to be paid by defendants; and that "the said defendants, by then and there warranting, pretending and representing said note to be good, and the maker thereof to be responsible, then and there falsely and fraudulently sold and exchanged the said note, together with the said sum of seventy-five dollars, with the plaintiff for said span of horses; and that plaintiff, confiding in said representations and pretences of the defendants, on etc., delivered his said horses to defendants for said note and said seventy-five dollars;" that at the time of making said false and fraudulent representations and pretenses, and of said exchange, said note was not good, nor the maker responsible, but that it then was, and still is, worthless, and the maker was, and still is, irresponsible; and that by means of the premises the plaintiff has been deprived of the use of his horses. And so said plaintiff says that defendants, on said sale and exchange, falsely and fraudulently deceived and defrauded the plaintiff as aforesaid.

The second count is an ordinary count in trover for the same horses.

The declaration concludes: "To the damage of the plaintiff of five hundred dollars."

It was objected by the defendants below, that as the first count does not allege a scienter on the part of the defendants, it must be treated as a count in assumpsit upon contract, and could not therefore be joined with the second, in trover; that the declaration was bad for the misjoinder, and no evidence could properly be given under it; and several errors are assigned, based upon this view.

But we think the first count cannot fairly be treated as a count in assumpsit. It alleges no promise or agreement as the gist of the action, but only as inducement; and though it alleges the bargain to have been brought about by "warranting, pretending and representing" the note to be good, and the maker to be responsible, the word and the idea of "warranting" is entirely dropped in all subsequent portions of the declaration, and the whole ground of action is made to rest upon the "fraudulent representations and pretenses" of the defendants in reference to the note and the maker, in reliance upon which, it is alleged, the plaintiff completed the trade and delivered the horses.

These representations are alleged to be fraudulent, and to be false and fraudulent, and therefore that the plaintiff was, by the defendants, falsely and fraudulently deceived on said sale, and deprived of the use of his horses.

As to the want of a scienter, it is true the declaration does not, in so many words, allege that the defendants at the time "well knew that the said note was not good, and the maker irresponsible," but it does allege that they "falsely and fraudulently" represented the note to be good, and the maker responsible. This term "fraudulently," in this connection, of itself implies knowledge of the falsehood of the representations, or sufficient knowledge, at least, to render them liable for the consequences of the fraud.--See 1 Chitty's Pl., 423 (citing Willes, 584); 1 Chitty's Pl., 157; 2 East, 446; 4 Bing 73; id., 66. At all events, this is at least an argumentative allegation of defendants' knowledge, and not being demurred to, is cured by verdict.-- Kean v. Mitchell, 13 Mich. 207.

There is, therefore, no misjoinder of causes, nor of forms of action. The nature of the causes of action is in legal effect the same: the same plea may be pleaded, and the same judgment given on both counts. And though the evidence tending to prove the scienter on the part of the defendants was mostly, if not all, offered under the (second) count in trover, it was equally applicable to both; the theory of the plaintiff's action, as shown by the proof offered, and all his proceedings on the trial, being that defendants induced the plaintiff to make the trade or exchange, by such false and fraudulent representations as rendered the contract void at his option, so that the property never passed to the defendants, or either of them, or if it did, that it revested in the plaintiff by his subsequent rescission of the contract, the same proof would be required and admissible under the one count as under the other, and no representations need to be set forth in the action of trover.

The plaintiff below claimed on the trial: First, that, though the purchase of the horses was nominally made, or pretended to be made by or for defendant Beebe alone; yet, that defendant Knight was also interested in the trade, and that the horses were in fact purchased or obtained on the joint account, and for the joint benefit, of both Knight and Beebe; second, that Knight and Beebe acted in concert, with the common design of deceiving and defrauding the plaintiff, and inducing him to trade, by falsely representing the note to be good, and the maker responsible, knowing, or having good reason to believe, the contrary, or at least having no good reason to believe the representations to be true, and that by these fraudulent means they did induce the plaintiff to trade, and to part with his property.

If the plaintiff could establish these two points to the satisfaction of the jury, he would be entitled to recover; any evidence, therefore, tending to establish any part of these two propositions, would tend to establish his cause of action, and must be admissible. A large number of exceptions are taken to the evidence offered for the purpose of sustaining these propositions, and most of the questions in the case arise upon these exceptions. The plaintiff himself was the first witness sworn, and as his testimony shows clearly the nature of the case, and raises many of the points upon which exceptions are taken, and will tend to show the pertinency or impertinency of most of the evidence of other witnesses to which exceptions were taken, I here state the substance of his testimony, so far as material for these purposes.

"I was partially acquainted with defendant Beebe; we both live in Prairie Ronde township; met him at different times up to April, 1869; had no business transaction with him up to that time; he lived on Mary Knight's farm, a sister of defendant Knight; knew he had no farm of his own. Knew William Knight, the other defendant, who resides in Schoolcraft. Did not then know Frank Calvert, who resides about four miles from me. I owned, on the 19th of April 1869, a pair of matched mares four years old. Had negotiations with defendants that day in front of Johnson's. When defendants came, first saw Beebe driving; William Wheaton was with defendants. One of them, can't say which, spoke. They remained in the buggy until they asked me whether I would sell the team (meaning plaintiff's team), or not. One of them asked me if I had any thing to trade; I replied, I had not. They wanted to know if I would sell that bay team; I said I would for money. Knight got out, looked around the team, and taking me one side, said they had no money, but wanted to buy a team that day, and he wanted to turn out obligations, one note against Sam Barber of fifty dollars, and another of seven hundred dollars. He pulled out other paper; one note against Frank Calvert. I told him I did not know Frank Calvert, but did his brother James, and refused to take the note. Knight said Calvert was perfectly good for it, that he had property, and that was the only note against him that he knew of; that he had been very prompt in paying his debts; that he had a hundred and sixty acres of land,--and two shares in the homestead (of three hundred and twenty acres), that was a hundred and sixty acres,--bought one shares of his sister, and his own share made two shares; said that they had been around that morning on purpose to see this team; that he had heard Beebe often speak of this team; and that he was buying the team for Beebe. Beebe all this time was in the buggy with Wheaton. I asked Knight to guaranty payment of the note, but he would not do it. Told Knight I would sell the team for three hundred and fifty dollars. Knight said he thought he would go and see another team at some place, and urged me to go with him; went with him; did not know where they were going. We all went together and stopped at widow Calvert's. One of the party inquired for Frank Calvert, and was informed...