Burlingame v. B. E. Taylor Realty Co.
| Decision Date | 03 June 1929 |
| Docket Number | No. 136.,136. |
| Citation | 225 N.W. 562,247 Mich. 109 |
| Parties | BURLINGAME v. B. E. TAYLOR REALTY CO. et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Ionia County, in Chancery; Royal A. Hawley, Judge.
Action by Edmund G. Burlingame and another against the B. E. Taylor Realty Company, a Michigan corporation, and others. Decree for plaintiffs, and defendants appeal. Reversed and rendered.
Argued before the Entire Bench.Eldred & Gemuend, of Ionia (Campbell, Bulkley & Ledyard, of Detroit, of counsel), for appellants.
Watt & Colwell, of Ionia, for appellees.
On the 23d of July, 1926, the plaintiffs herein entered into a contract to purchase from the defendant B. E. Taylor Realty Company, a Michigan corporation, lot 65 of B. E. Taylor's Grand River-Telegraph subdivision, located in Redford township, Wayne county, Mich. The defendants Arthur L. Francis and Samuel Horrocks acted as agents for the realty company in this transaction. The bill of complaint herein is filed for the purpose of securing cancellation of the above-mentioned contract and the repayment of $675 which plaintiffs had paid thereon. This relief is sought on the ground that the plaintiffs were fraudulently induced by the defendants Francis and Horrocks to enter into the land contract. Plaintiffs were granted the relief sought, and defendants have appealed. We will consider separately the various charges of fraud set up in the bill of complaint. In so doing we will refer to Mr. Edward G. Burlingame as the plaintiff herein, because all of the alleged false representations are claimed to have been made to him rather than to Mrs. Burlingame, who signed this contract with her husband.
I. One of the alleged false representations is that lot 65 was the last lot for sale in this subdivision. In our judgment this charge is not satisfactorily proven. The record discloses plaintiff knew at the time of his purchase that at least one other lot was being sold to his employer, Mr. Dent. There is also testimony that the defendants tried in the presence of the plaintiff to sell other lots to Mr. Dent at this same time. Further, plaintiff knew of sales of still other lots very soon after he made his purchase, but he made no complaint to any of the defendants. In any event, it may be seriously doubted whether such a representation should be held in this case to have been of such a material and controlling character as to justify plaintiff's claim that he believed the same, relied upon it, and would not have purchased the lot except for the making of this alleged false statement. Even if the lots had all been sold, it is fair to presume they would not have been thus removed from the market, but would have still been for sale by the respective vendees. At most, the statement bore only indirectly upon the existing demand for and possible value of the property. As is also true of many phases of this record, plaintiff's testimony that this representation was made to him is not directly corroborated by any other witness, but is specifically denied by the defendants Francis and Horrocks. The statement is alleged to have been made in the presence of plaintiff's employer, Mr. Dent, but the latter was not called as a witness for the plaintiff who was charged with the burden of proof on this issue. The plaintiff does not explain in his testimony how or why he was particularly influenced by this alleged misrepresentation, and the trial judge in his written opinion did not attach serious importance to it.
II. Plaintiff's allegation that it was falsely represented to him that, ‘Telegraph Road would be widened * * * and made into a cement Boulevard 204 feet wide during the summer of 1927 and that contracts therefor had been let by the State Highway Department,’ is sharply controverted in this record. In so far as this was a statement of what would be done in the way of procuring a public improvement in the future, it was obviously a mere expression of opinion and not a representation as to a fact. The statement ‘that the contracts therefor had been let’ is not shown by any testimony in the record to have been untrue. As a matter of fact, the plat of this subdivision provides a width of 204 feet for this highway, and the same is under process of construction in this immediate locality. Here again the testimony of the plaintiff is directly contradicated by two of the defendants, and plaintiff failed to call to his support Mr. Dent, who presumably was available and knew of this alleged false representation if it in fact was made. Some of plaintiff's witnesses, who evidently were called to corroborate him in this respect, testified that no time for the completion of this highway undertaking was specified by the defendants in negotiations with such witnesses incident to sales of lots in this subdivision. On this phase of plaintiff's case there is some testimony tending to sustain his claim that defendants represented to him they had been promised by a certain state official that this highway work would be completed during the summer of 1927; but if we assume that such an alleged representation is sufficiently material to constitute a basis for a charge of fraud, it need only be noted that there is no proof in this record that the alleged representation was not true in fact.
III. It is further claimed by the plaintiff that a false representation was made to him ‘that a sewer system, gas and city water system would be installed within six months.’ He offered no testimony tending to prove this alleged false representation as to the installation of a gas supply. It may be noted that the question of installation of a water system and sewer system is specifically covered by the contract, but nothing is provided therein relative to gas. A 36-inch water main was laid before the bill of complaint was filed herein. The installation of a water system and a sewer system is expressly covered by the terms of the written...
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