Cronkhite v. Dickerson

• Decision Date: 22 June 1883
• Citation: 16 N.W. 371,51 Mich. 177
• Court: Michigan Supreme Court
• Parties: CRONKHITE v. DICKERSON.

16 N.W. 371

51 Mich. 177

CRONKHITE v. DICKERSON.

Supreme Court of Michigan

June 22, 1883

Where an action is brought for fraud in falsely representing that a mortgage sold was a first mortgage, when in fact it was a second mortgage, the statement of the mortgagee who sold the mortgage, made at the time of its execution, that he did not want it to contain a covenant against incumbrances, as that would affect the sale of it, is relevant testimony.

The remarks of the judge to the counsel in this case, in the presence of the jury, being calculated to prejudice them against defendant, must be considered error, and the judgment reversed, and a new trial granted.

Error to Kent.

COOLEY. J., dissents.

Fletcher & Wanty, for plaintiff.

Taggart & Wolcott, for defendant and appellant.

SHERWOOD J.

The plaintiff brings case for alleged fraud in the sale of a note and mortgage to him by defendant. The fraud charged consisted in the defendant's falsely representing to the plaintiff that the mortgage he then offered to sell to the plaintiff was a first mortgage on real estate, and thereby induced the plaintiff to purchase the same, when in fact it was a second mortgage and of little value. The plaintiff recovered, on a trial before a jury at the circuit. Two errors only are assigned upon the record, and both relate to rulings in receiving testimony.

Counsel for plaintiff offered the statements of the defendant, at or about the time of the making the mortgage, to the effect that he did not want the mortgage to contain a covenant against incumbrances, giving as a reason that it might prejudice its sale. This testimony was objected to as irrelevant and too remote. We think the testimony was properly received and within the former rulings of this court. Cost v Bender, 25 Mich. 515; Comstock v. Smith, 20 Mich. 346; Beebe v. Knapp, 28 Mich. 65; Cook v. Perry, 43 Mich. 627; [S.C. 5 N.W 1054.]

On receiving the testimony just alluded to, counsel for plaintiff stated to the court, in the presence of the jury "I expect to show that Mr. Dickerson said at the time that he wanted the mortgage to trade, and could not if anything was in it showing a first mortgage, and, in pursuance of his statement, he did trade it off to the plaintiff." Counsel for defendant thereupon remarked "That is pretty remote; the testimony is that he sought Mr. Dickerson, and not Mr. Dickerson him." The court then suggested: "Yes, but he might have been lying in wait. If it [meaning the mortgage] had contained a covenant against incumbrances, and it was a true statement of the situation of the property, it would itself have...