Daniel F. Donovan v. Wilmer Towle

• Decision Date: 06 October 1926
• Citation: 134 A. 588,99 Vt. 464
• Parties: DANIEL F. DONOVAN v. WILMER TOWLE
• Court: Vermont Supreme Court

134 A. 588

99 Vt. 464

DANIEL F. DONOVAN v. WILMER TOWLE

Supreme Court of Vermont

October 6, 1926

May Term, 1926.

ACTION OF TORT for fraud in sale of farm. Plea, general issue. Trial by jury at the November Term, 1924, Orange County, Willcox J., presiding. Verdict for defendant and judgment thereon. The plaintiff excepted. The opinion states the case.

Reversed and remanded.

Shields & Conant for the plaintiff.

H W. Hastings for the defendant.

Present POWERS, SLACK, and FISH, JJ., and MOULTON and GRAHAM, Supr. JJ.

OPINION

MOULTON

This is an action for fraud in the sale of a farm and the personal property thereon, situated in Piermont, New Hampshire. Trial was had by jury with verdict and judgment for the defendant. The plaintiff brings exceptions.

The fraud consisted in the alleged misrepresentation of the acreage of the farm, the claim being that, during the preliminary negotiations for the purchase by the plaintiff, the defendant stated that the farm contained five hundred and fifty acres, and that when the deed was prepared he represented it as five hundred acres. The undisputed evidence showed that the farm was of less than four hundred acres, the witnesses differing only as to the exact amount.

The first exception briefed relates to a question asked on cross-examination of a witness called by the plaintiff. This witness had testified, on direct examination that, in his opinion, if the farm had contained five hundred acres, it would be worth $ 2,500 to $ 3,000 more than it was with the acreage as the plaintiff's evidence had tended to show. On cross-examination he was asked whether he knew what the plaintiff had paid for the farm. On objection being made, defendant's counsel stated that he expected to ask the witness whether in his opinion the plaintiff paid more than the farm was worth, and whether he had not stated to the defendant shortly after the sale was made, that he would have been willing to pay the plaintiff $ 500 for his trade. In the course of the discussion over the admissibility of the offered evidence, the court said, "That will be proper for you to show that, bearing upon his credibility as to the testimony he gives now as to the value of the farm." The plaintiff excepted to the foregoing statement by the court, and claimed that there was no question of the credibility of the witness. The question was thereupon withdrawn.

The plaintiff urges that there was error, in that it was brought prominently before the mind of the jury that it was proper for them to consider the value of the farm at the time of the purchase. But this was not the ground, stated in the exception, and so is not here considered. The court proposed to admit the offered evidence as impeaching the witness. Whether admissible for this purpose, we need not consider since the question was withdrawn. It is enough to say that prejudice to the plaintiff from the remarks of the court in this connection, does not affirmatively appear.

The same witness was asked in cross-examination, "What in your judgment was the fair and reasonable value of the Towle Farm at the time Mr. Donovan bought it?" In allowing the question the court said: "There can be no recovery here unless there has been some injury. I think this question is a proper question. If he got value worth for what he bought, I think it is important to determine whether the farm was fairly worth what he paid for it or not." The plaintiff thereupon excepted to the admission of the evidence, and to the language as used by the court in making the ruling. The witness answered, "$ 7,500 to $ 8,000."

If the language used by the court is to be construed as meaning that if the farm was fairly worth the price paid for it, there could be no recovery, it was an erroneous statement of the law. The plaintiff was entitled to the benefit of his bargain, and, if entitled to recover, the measure of damages would be the difference between the value of the property as it actually was, and as it would have been, if as represented, McDonald v. McNeil, 92 Vt. 356, 358, 360, 104 A. 337; Turner v. Howard, 91 Vt. 49, 52, 99 A. 236; Belka v. Allen, 82 Vt. 456, 461, 74 A. 91; Shanks v. Whitney, 66 Vt. 405, 413, 29 A. 367; Bowman v. Parker, 40 Vt. 410, 413, 414. But a judgment will not be reversed where evidence received under an erroneous theory is nevertheless otherwise admissible. In re Estate of Martin, 92 Vt. 362, 365, 104 A. 100; Fairbanks v. Stowe, 83 Vt. 155, 160, 74 A. 1006, 138 Am. St. Rep. 1074. The offered evidence was material on the question of damages, as laying the foundation for the introduction of other evidence tending to show a smaller discrepancy in value between the actual and represented acreage of the farm than that claimed by the plaintiff (Belka v. Allen, 82 Vt. 456, 74 A. 91), and its admission was not error, though defendant offered no evidence of the value of the farm if it had been as represented.

Prejudicial error does not appear in the language of the court, of which the plaintiff complains. True, it was not a correct statement of the law, but an examination of the charge to the jury discloses the fact that the rule was plainly and accurately stated, in accordance with the language of the cases cited above. It cannot be supposed that the jury were influenced by a remark of the court, addressed to counsel during the course of a discussion upon a question of law, in the light of the explicit language directed to them in the charge. It has been held that an erroneous statement in a charge may be cured by a subsequent correct statement therein. Ide v. B. & M. R. R., 83 Vt. 66, 74 A. 401; Graves v. Waitsfield, 81 Vt. 84, 69 A. 137. How much more, then, may an incorrect statement of law, not addressed to the jury, but to counsel, be cured by an explicit and correct exposition of the same point in the charge?

On cross-examination of one of the plaintiff's witnesses, he was asked as to the value of the farm at the time of the sale. Subject to the objection that the question of value was not in the case, and that the fraud was in the misrepresentation of the acreage, he was permitted to answer. That the question of value was material we have already seen. This exception is without merit.

The sale included the real estate and personal property thereon for a lump sum. Evidence of the value of the personal property was therefore properly admitted to show the value of the real estate, the entire purchase price having been shown. Price tends in some measure to show value. Smith v. Martin, 93 Vt. 111, 130, 106 A. 666; Crampton v. Valido Marble Co., 60 Vt. 291, 15 A. 153, 1 L.R.A. 120; Belka v. Allen, 82 Vt. 456, 74 A. 91; Hildreth v. Fitts, 53 Vt. 684; Rawson v. Prior, 57 Vt. 612. Evidence of value of the personal property first appeared in the case by the testimony of the plaintiff himself in his direct examination.

On cross-examination the plaintiff testified to changes in the personal property, after he had purchased, by the dis posal of some of the items on the farm at that time, and the addition of others. He also testified to the repairs made by him, and gave an estimate of the amount expended by him for this purpose. He was then asked, "Did you sell (the farm and personal property) to Tyler for $ 12,000?" The transcript shows that the answer, "Yes, sir," was given before an objection was interposed, and, in the absence of a showing to the contrary, this would be presumed to be the case. Ford v. Hersey et al., 92 Vt. 405, 412, 104 A. 875. No ground for the objection was stated, but it is now urged that because the court had excluded an offer by the plaintiff to show, as an element of damages, that he sold the farm to Tyler, telling the latter that he supposed it to contain 500 acres and that the latter recovered damages against him in the New Hampshire court, by reason of the misrepresentation as to the acreage, which damages were directly traceable to the misrepresentations of the defendant, he, the plaintiff was deprived of an opportunity to explain the situation as to the sale by him to Tyler. It is enough to say that the ground of objection was not made below, and therefore is not to be considered here. Arnold v. Somers, 92 Vt. 512, 524, 105 A. 260.

The plaintiff briefs several exceptions taken to questions asked upon cross-examination of the plaintiff, with regard to his estimate of the value of the personal property purchased of the defendant, at the time of the sale to Tyler. The grounds stated were that conditions and...