Browne v. Moore

• Decision Date: 15 June 1875
• Citation: 32 Mich. 254
• Court: Michigan Supreme Court
• Parties: Samuel A. Browne v. John R. Moore and another. [1]

32 Mich. 254

Samuel A. Browne v. John R. Moore and another. ^[1]

Supreme Court of Michigan

June 15, 1875

Submitted on Briefs, June 11, 1875

Error to Kent Circuit.

Judgment affirmed, with costs.

Norris Blair & Stone, for plaintiff in error.

Champlin Butterfield & Fitzgerald, for defendants in error.

OPINION

Graves, Ch. J.:

In this action the defendants below prevailed.

The plaintiff in error sold to one or both defendants a mare, for the agreed consideration of five hundred dollars, and for one hundred and fifty dollars of such consideration the following note was given:

"Grand Rapids, February 8, 1873.

"$ 150.00 On or before October first next, we, or either of us, promise to pay S. A. Browne, or order, one hundred and fifty dollars, for value received, with interest at ten per cent. per annum, until paid.

"(Signed) John R. Moore, George I. Moore."

The suit was brought upon this note, and the defendants pleaded the general issue, with a special notice setting up misrepresentations touching the breeding, purity of blood, pedigree and training of the mare, and as to her running qualities, and also setting up that Browne bound himself to furnish a satisfactory pedigree, and warranted the mare in certain particulars.

The case was tried before a jury, and after the evidence was closed, the defendants' counsel withdrew the special notice which had been given, and was allowed by the court, against the objection of plaintiff's counsel, to substitute for the notice withdrawn, the following:

"We insist, and give notice, that the note to recover which the above entitled suit is brought, is void, as fraudulently obtained by means of representations by the said plaintiff, that a certain mare was a thorough-bred mare, of good blood and pedigree, unbroken to harness, and of good disposition, he well knowing that such representations were false at the time they were made, and which representations were made in the sale of said mare to the defendants." Error is assigned upon the decision of the court allowing this change in the notice.

This objection is readily disposed of:

First, The ruling which allowed the amendment was not excepted to.

Second, In giving leave to-change the notice, or rather to substitute the notice finally permitted for that which was originally attached to the plea, the court exercised a discretion, and such exercise could only be re-examined on writ of error, in case it should appear that the power was abused.--Ripley v. Davis, 15 Mich. 75; Final v. Backus, 18 Mich. 218; Tupper v. Kilduff, 26 Mich. 394; Polhemus v. Ann Arbor Savings Bank, 27 Mich. 44.

Third, The defense of fraudulent misrepresentation was equally admissible under either notice. The first suggested the misrepresentations, that they were false, and that the plaintiff deceived the purchaser, but it did not state precisely and technically that the plaintiff knew the representations were false when he made them. The second notice contained this statement. But no such particularity was necessary to authorize the proof. The office of a notice requires no such nicety, and the evidence could not have been excluded under the first.--Rosenbury v. Angell, 6 Mich. 508; McHardy v. Wadsworth, 8 Mich. 349; Cresinger v. Reed, 25 Mich. 450.

In permitting the change, therefore, there was no abuse of discretion, or any substantial alteration caused in the state of the case, in regard to the right to evidence as to the alleged fraud.

The defendant John R. Moore was allowed, under objection, to testify to the market value of the mare, upon the hypothesis that she was not a blooded animal, and also to testify what she would have been worth for breeding purposes, upon the supposition of her pedigree being such as it was said the plaintiff agreed to show it. And in regard to this the plaintiff has assigned for error, that it was not competent to allow the...