Buchanan v. Gould

• Decision Date: 28 January 1881
• Citation: 8 N.W. 73,45 Mich. 481
• Court: Michigan Supreme Court
• Parties: BUCHANAN v. GOULD.

8 N.W. 73

45 Mich. 481

BUCHANAN v. GOULD.

Supreme Court of Michigan

January 28, 1881

G. sold B. certain merchandise and some land as an entire transaction, taking B.'s note in part payment. Certain material representations as to the land and improvements were not true, though supposed at the time by both parties to be true. Held, that in an action by G. on the note, B. might recoup the damages resulting from the misrepresentations.

Error to Van Buren.

Richards & Mills, for plaintiff in error.

C.R Armable, for defendant in error.

GRAVES J.

Gould sold Baughman certain merchandise together with a small parcel of land for $1,000. The lot was surrounded by a fence and there was a dwelling-house, a well and considerable ornamental shrubbery. It was represented by Gould that the lot included all the territory enclosed and this representation was made by him and received by Baughman in perfect good faith. Both supposed it to be true and Baughman in assenting to the purchase and in agreeing to terms relied upon it. The purchase of the goods and of the real estate was an entire transaction although the price of $650 was assigned to the latter. When the parties adjusted the general consideration there was a balance of $157.40 still to be provided for, and Baughman gave his note for it. It was subsequently ascertained that the representation made by Gould was incorrect and that part of the land within the enclosure belonged to another. That a small portion of the house was beyond the line and that the well and part of the shrubbery were wholly so.

Under these circumstances Gould brought this action upon the note and Baughman claimed to recover damages for the misrepresentation made relative to the premises. But under the judge's rulings the jury found in Gould's favor and refused to allow anything on account of the misrepresentation. Two points arise upon the charge: First the circuit judge instructed the jury that there could be no recoupment unless Gould knew his representation was false or at least had means of knowledge that it was so superior to any possessed by Baughman; second, that in case the note was given in part payment for goods and land together it would not be competent to allow damages for the misrepresentation concerning the land.

We are not able to assent to either of these propositions. For the purpose of recoupment it is quite immaterial whether as a question of morals Gould...