Cook v. Perry
| Decision Date | 11 June 1880 |
| Court | Michigan Supreme Court |
| Parties | COOK v. PERRY. |
Failure to have a discontinuance as to some of the defendaants entered in the record is immaterial, as is also neglect to formally amend the declaration. Refusal to compel party to elect as to which count in the declaration he would stand upon, held, not error. Inaccuracies in pleading not of substance should be met by demurrer. In an action for fraudulent representation, evidence of similar representations to others, subsequent to those complained of held competent. A ruling to which counsel on the trial apparently acquiesced in will not be reviewed. Certain damages allowed in an action for an alleged cheat held proper.
Error to Ingham.
R.C. Dart, for plaintiff in error.
M.V. & R.A. Montgomery, for defendant in error.
This is a writ of error brought by Cook to reverse a judgment given against him in the circuit court for the county of Ingham. Perry brought a special action on the case against Calvin Faling, Matilda J. Faling, and the plaintiff in error, for an alleged cheat, by which he was induced to convey valuable premises in Ingham county to Mrs. Faling, in exchange for lands in Jackson county, nearly or quite worthless. The declaration contained two counts, and averred that the defendants conspired together and were confederates in the perpetration of the fraud. Faling and wife were not served and did not appear; but the plaintiff in error pleaded the general issue. The case being noticed for trial at the May term, in 1879, the counsel for Cook on the first day requested the court to set the trial down for a day certain, and the court complied and designated the 20th day of the month. At that time it was called up, and the counsel for plaintiff in error then objected that it was not in readiness because the defendants Faling were in the record and had not been brought in. Whereupon the opposing counsel asked leave to discontinue as to those defendants, and to be permitted to prosecute against Cook alone; and the court gave leave and the cause was discontinued as to said two defendants.
Whether it was or was not strictly regular to notice the cause for trial in the condition of the proceedings, is a matter of no importance. The trial was appointed by consent, and the other defendants were dropped. All ground of objection was cut off. Berresford v. Geddes, L.R. 2 E.P. 285. The failure to have the discontinuance entered in the records is of no consequence. The omission is rendered harmless by the statute, (sections 6049, 6052, 6051, subds. 12 and 13.) Berresford v. Geddes, supra; Com. v. Taylor, 113 Mass. 1. The neglect of a formal amendment of the declaration is equally unimportant. Emery v. Whitwell, 6 Mich 474; Tidd, 955.
The court was asked to confine the defendant in error to one of the two counts, and to compel him to elect the one on which he would proceed. This was refused, the court stating at the same time, however, that he should instruct the jury on the subject of damages to the value of the property Perry parted with, and would not permit the value of the property he understood he was bargaining for to be made a criterion of damage.
It was not matter of right to have the plaintiff compelled to elect between the counts of the declaration. The union of different statements is allowed by the rules of pleading, and there was no misjoinder of counts or of causes of action. The action of the court is not reviewable.
The objections brought against the declaration for want of certainty and other faults of the like nature are entirely ineffectual.
There is no defect of substance, and whatever inaccuracies may be suggested they should have been met by demurrer. They are to be considered now as waived or cured by the statute. Comp.Laws, c. 190; Tidd. 459, 460, 954, et seq.; Hathaway v. Sackett, 52 Mich. 97; Van Middlesworth v. Van Middlesworth, Id. 183; Reynolds v. Lounsbury, 6 Hill, 534; Huntress v. Burbank, 111 Mass. 213; Upham v. Damon, 12 Allen, 98; State Ins. Co. v. Todd, Sup.Ct.Pa., 1877; Nichols v. Poulson, 6 Ohio, 305; Campbell v. New England, etc., Mut. L. Ins. Co. 98 Mass. 381, 400.
The defendant in error had sworn to certain statements Cook had made to him relative to the location, character and ownership of the land to be received in exchange for the premises to be transferred to Mrs. Faling, and which the defendant in error claimed he relied on as true, and found to be false.
After the exchange was made, but before the fact was known to Cook and after the cheat had been discovered, a son of defendant in error sought an interview with Cook, in the assumed character of a stranger, to draw from him, as the witness claimed, a repetition of the representations previously made to the father, and he was allowed to give his version to the jury of what then occurred, and except in one or two particulars it ascribed to Cook the same representations in substance as had been sworn to by defendant in error. The exceptions were in favor of the defence. This evidence was allowed against the objection that the "talk took place long after the trade was consummated and deception perpetrated, and that it was incompetent to show what Cook said subsequently." It was not error to overrule this objection. The ground that the negotiation had taken effect was not a valid reason for the total exclusion of the evidence. It is obvious that it could not be used as substantive proof of the alleged false statements constituting the fraud and causing the injurious result. The mischief had been done, and it could not possibly be charged to subsequent falsehoods. But evidence which is not admissible for one purpose is often lawful for another, and it is not uncommon to make proof of matters occurring after the consummation of the wrong, in order to identify the agency which produced it, or fortify the antecedent indications. Republic v. Hevice, 3 Wheeler C.C. 505, 507, 508; Reels v. Knight, 8 Mart.La. (N.S.) 267; Jackson...
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