Harlow v. Perry

• Decision Date: 30 March 1915
• Citation: 93 A. 544,113 Me. 239
• Parties: HARLOW et al. v. PERRY.
• Court: Maine Supreme Court

93 A. 544

113 Me. 239

HARLOW et al.

v. PERRY.

Supreme Judicial Court of Maine.

March 30, 1915.

Exceptions from Supreme Judicial Court, Androscoggin County, at Law.

Action by Elmer E. Harlow and others against Fred A. Perry. Judgment for defendant, and plaintiffs except Exceptions sustained.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ.

Oakes, Pulsifer & Ludden, of Auburn, for plaintiffs. R. W. Crockett, of Lewiston, for defendant.

HALEY, J. This is an action on the case for deceit in the sale of a stock of goods, consisting of toys, crockeryware, glassware, and miscellaneous articles, including those usually found in the so-called ten-cent stores, at the time of the sale contained in the basement, two stories, and an attic of a store about 25 feet wide and 80 to 90 feet deep. The goods were sorted and placed upon the shelves under the direct supervision of the defendant, who was present at the store most of the time. The plaintiffs claimed, and introduced evidence tending to show, that the defendant represented that the goods were in the same condition as when they were arranged in the preceding spring, were of the same kind and quality as they appeared arranged upon the shelves and in the various receptacles, and those behind and out of sight of the same kind and quality as those in front, and that, when removed from the shelves and receptacles, the goods in the back part and out of sight were inferior in quality and condition to those which could be seen from the front.

The exceptions relate to the following instructions by the court:

"Now, further, the defendant says that the plaintiffs were not justified in relying upon whatever statement he made in regard to the goods as they were arranged upon the shelves. The contention of the defendant is that the plaintiffs came there, saw the goods, had an opportunity to examine them, and that it was their duty to examine them, and that they had no right, as he says, as a matter of fact, to rely upon his statement. They could see the goods and did inspect them.

"Well, a person who is purchasing property is obliged to use his own eyes and see what is to be seen. But the plaintiffs claim here that under the circumstances of this case, considering the character of the goods, the articles comprising the stock, the multitude of articles, that they were of such a kind that upon the shelves there would be numerous articles upon the same shelf, and considering the fact that the defendant had made the statement to them that they had been arranged to show them fairly, and considering the further fact, as the plaintiffs claim, that the defendant had said that there had been an appraisal made by the appraisers amounting to $8,000, that they were justified in not making any further investigation than they did make.

"Now, I leave that as a question of fact for you to determine under all of the circumstances of this case. Were these plaintiffs negligent? Did they have abundant oportunity to inspect this stock of goods, and ascertain if the goods, as they could see them, were a fair representation of all the goods? Did they exercise reasonable care on their part? If they did nut, then they did not reasonably rely upon...