Davis v. Davis

• Decision Date: 10 November 1893
• Citation: 97 Mich. 419,56 N.W. 774
• Court: Michigan Supreme Court
• Parties: DAVIS et al. v. DAVIS et al.

56 N.W. 774

97 Mich. 419

DAVIS et al. v. DAVIS et al.

Supreme Court of Michigan

November 10, 1893

Error to circuit court, Sanilac county; Watson Beach, Judge.

Assumpsit by Daniel Davis and Thomas Rankin against E. S. Davis Charles E. Ross, George B. Ross, and Thomas Canham on a note. There was a judgment in favor of defendants, and plaintiffs bring error. Reversed.

Elbridge F. Bacon, (W. A. Mills, of counsel,) for appellants.

Avery Bros. & Walsh, for appellees.

LONG J.

This case was in this court, at the October term, 1890, reported in 84 Mich. 329, 47 N.W. 555, reversed and remanded for new trial. The facts are very fully stated in that opinion. At the first trial the claim of damages by defendants was based upon loss of profits sustained by them. It was said by this court that the testimony was too uncertain and speculative in character to furnish any reliable data to estimate profits. The defendants, before trial, again came on in the court below, filed an amended plea and notice, and the claim of damages is now based upon failure of title to the territory sold to them by plaintiffs. The court directed the jury that "the defendants' claim of damages is that the property was rendered valueless by what they claim to be a fact; that the title to the territory was held by the Port Huron Creamery Company, and that the material on hand, their buildings, engines, etc., were rendered valueless for that particular business, and that they had no value except what would be valuable for in some other business and what they could be sold for." The defendants had judgment in their favor, and plaintiffs bring error. The case went to the jury upon the theory, as to damages, that defendants would be entitled to recover what they had actually lost by reason of the failure of title to the territory, and not upon the question of profits, as upon the former trial. The first and second assignments of error relate to the ruling of the court in permitting defendant Canham to testify that plaintiffs' agent stated that just as soon as the creamery was completed the Port Huron people would have to get out of the territory, and that the purchase was made with that understanding; and also that, if they had known that the Port Huron people had a right to occupy the territory, they would not have given the notes. This was competent testimony. The claim made by defendants was that plaintiffs' agent falsely represented that the plaintiffs had title to certain territory in which to use the Fairlamb can, and that defendants purchased in reliance upon such representations. The fullest inquiry was permissible. The testimony was admitted under the theory that a false and fraudulent representation had been made as to an existing fact; that defendants relied upon it in giving the note. The court was asked by plaintiffs' counsel to instruct the jury that the Port Huron Company had no title to the territory sold to defendants, and therefore the plaintiffs could not be made liable to defendants on account of such occupation by the Port...