A. Crosby Kennett And Herbert Mudgett v. George a Tudor And Ernest Tudor
| Decision Date | 16 October 1911 |
| Citation | 81 A. 633,85 Vt. 190 |
| Parties | A. CROSBY KENNETT AND HERBERT MUDGETT v. GEORGE A TUDOR AND ERNEST TUDOR |
| Court | Vermont Supreme Court |
May Term, 1911.
CASE for deceit in the sale of personal property. Plea, the general issue. Trial by jury at the September Term, 1910. Windham County, Taylor, J., presiding. Verdict and judgment for the plaintiffs, who live in New Hampshire, while the defendants live in Vermont. The defendants excepted.
Judgment affirmed except as to damages, but reversed as to those, and cause remanded.
Chase & Daley for the defendants.
Present ROWELL, C. J., MUNSON, WATSON, HASELTON, AND POWERS, JJ.
The plaintiffs' concession that the Gibson and the Ware mortgages are valid in New Hampshire and constitute valid incumbrances there on the property that was taken from Vermont, was equivalent to a concession that Kennett did not intend to contest the trover suit on the ground that they are invalid. This being so, the concession bound the plaintiffs in this case as much as Kennett's answer to the like effect would have bound them, and so the defendants got what they asked for, namely, Kennett's intention in respect of that ground of defence.
No copy of the second count is furnished us. All we know about it is as stated in the exceptions, that it alleges fraud and deceit in the sale of December 4, 1908. Nor have we a copy of the bill of sale, but we assume that it has the necessary elements of a contract of sale, for it was so treated below. Taken thus, the court was right in excluding the testimony of Ernest Tudor, for it would have gone beyond the purpose for which it was offered, namely, to rebut the plaintiffs' claim that they were deceived and cheated as alleged, and have tended to impeach the contract itself for non-consummation, which was not within the purpose for which the testimony was offered, which purpose is the same as the claim here made for its admissibility. And though the contract may be but matter of inducement, yet proof of it was essential in order to show a relation between the parties that would make the deceit actionable. Slack v Bragg, 83 Vt. 404, 411.
The plaintiffs also contend that the ruling was right because the plea of not guilty operates as a denial only of the deceit alleged, and not of the facts stated in the inducement. This is so under Reg. Gen. Hil., 4 Wm. IV, to which they refer, but not so at the common law, where, in case anything is admissible under the general issue that shows that the defendant is not guilty of anything actionable in respect of the matter charged in the declaration. Jerome v. Smith, 48 Vt. 230; and it does not appear that that scope of the issue was restricted here to the injury of the defendants, for they were permitted to testify fully to conversations covering the Gibson and the Ware mortgages, and were not denied the privilege of showing conversations tending to impute to the plaintiffs knowledge of the existence of said mortgages at the time the bill of sale was given.
As to damages. The defendants claim that it was error to refuse their request to limit them to a nominal sum. The plaintiffs claim that the full amount of the mortgages was the proper measure, in support of which they rely upon three Vermont cases, namely, Bowman v. Parker, 40 Vt. 410; Houghton v. Carpenter, 40 Vt. 588; and Shanks v. Whitney, 66 Vt. 405. But none of them are in point. Bowman v. Parker was case for fraudulent representations in the sale of certain shares of the capital stock of the Vermont Marble Company. The Court said that the general rule of damages in actions of that character is the difference between the value of the property as it really was at the time of the sale, and what its value would have been had the representation for which the seller is found liable been true. The case does not show what the representations were, but the opinion says they were representations affecting the value of the stock, by which is evidently meant the intrinsic value. Here the representations did not affect the intrinsic value of the property.
Houghton v. Carpenter, was case for breach of warranty in the sale of butter. The rule of damages was said to be the difference between the value of the butter at the time of sale, and what its value would have been had it been as warranted. There the butter was not as warranted, but was much inferior in quality; and there the warranty went to the intrinsic quality of the article sold.
Shanks v. Whitney was case for deceit in the exchange of real estate. The defendant's property was subject to a large mortgage that was about to mature. The plaintiff fully informed them that if he made the exchange and the mortgage could not be replaced, he should be obliged to let the property go on it, as he was not able to raise the money to pay it. They assured him that it could be replaced, and that they then had a man who would do it, and that they would turn that opportunity over to him. A street and a sidewalk ran over the property, and they told the plaintiff that the circumstances were such that the municipality was legally bound and ready to pay therefor. All of these representations were false to the knowledge of the defendants, but the exchange was made on the faith of them, after which the plaintiff made diligent effort to replace the mortgage, but could not, and the defendants did not, nor would, try to help him, nor give him the name of any one who would, and so he was forced to and did let the property go on the mortgage. The court applied much the same rule there as the court applied here; but there the rule was adapted to the case, for the plaintiff had suffered all the damage he recovered, while here the plaintiffs have suffered no actual damage, and may never suffer any, for the defendants may pay the mortgage debts, or Daley may enforce them against the mortgagor personally and let the security go free.
Indeed there is no difference between this case in respect of damages and cases on covenants against incumbrances, which are broken, if ever, when the covenant is made, and give rise to a claim for nominal damages, but to no more unless more have been sustained. It is not enough that here the plaintiffs conceded the validity of the mortgages, and virtually conceded that Kennett does not intend to defend the trover suit on...
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