Hoke v. Whisnant & Tilley
| Decision Date | 05 December 1917 |
| Docket Number | 474. |
| Citation | 94 S.E. 446,174 N.C. 658 |
| Parties | HOKE v. WHISNANT & TILLEY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Caldwell County; Carter, Judge.
Action by W. W. Hoke against Whisnant & Tilley. From a judgment for plaintiff, both parties appeal. Affirmed on plaintiff's appeal, and reversed on defendants'.
In action for damages from fraud inducing plaintiff to buy share in business, held that plaintiff's motion for judgment for $1,200 on verdict for $400 for such fraud could not be allowed, in absence of finding or admission that plaintiff had been damaged $1,200, amount he paid.
This is an action to recover damages, the plaintiff alleging that he was induced to pay $1,200 for an interest in a mercantile business by the fraud of the defendants. The defendants denied the allegations of fraud. The plaintiff introduced evidence tending to establish his contentions, and that he had been damaged at least in the sum of $1,200, the amount paid by him to the defendants. The defendants introduced evidence tending to prove there was no fraud, that the interest purchased by the plaintiff was worth $1,200 at the time of the sale, and that the loss to the plaintiff was due to mismanagement occurring after the sale. The negotiations with the plaintiff began in November, 1910, and resulted in the purchase by him of the interest in the business in February, 1911. This action was commenced in 1914. Under instructions to which there is no exception the jury returned the following verdict:
(1) Was the plaintiff induced to purchase a one-third undivided interest in the stock of goods and business of the Whisnant-Tilley Company by the false and fraudulent representations of the defendants, as alleged in the complaint? Answer: Yes.
(2) What damages, if any, is the plaintiff entitled to recover? Answer: $400.
Upon the coming in of the verdict the plaintiff moved the court:
(1) To set aside the verdict as to the second issue, and for a new trial as to the said issue, because the damages assessed are inadequate and not in conformity to the pleadings and proofs.
Motion denied, and plaintiff excepted.
(2) To set aside the verdict as to the second issue, and render judgment for the sum of $1,200 and interest from the 4th day of February, 1911, based upon the pleadings, proofs, and the findings of the jury upon the first issue, and tenders judgment accordingly.
This motion was denied, and plaintiff excepted. Judgment was then rendered in favor of the plaintiff for $400, with interest thereon from February 4, 1911, the date of the contract of sale. The defendant excepted to the judgment upon the ground that the plaintiff was not entitled to recover interest except from the date of the judgment. Both parties appealed.
Councill & Yount, of Hickory, for plaintiff.
Mark Squires and M. N. Harshaw, both of Lenoir, for defendants.
The motion by the plaintiff to set aside the verdict and for a new trial was one addressed to the discretion of the court and is not reviewable. Billings v. Observer, 150 N.C. 543, 64 S.E. 435; Harvey v. Railroad, 153 N.C 574, 69 S.E. 627.
Nor can the motion for judgment for $1,200 be allowed, because there is neither finding by the jury nor admission in the pleadings or on the trial that the plaintiff has been damaged $1,200. On the contrary while the defendants did not deny that the plaintiff paid $1,200, they contended, and introduced evidence in support of their contention, that the interest in the business bought by the plaintiff was worth $1,200 at the time of the sale, and that the loss sustained by the plaintiff was due to subsequent mismanagement. The measure of damages in actions of this character, where the property is retained by the vendee, as here, is the difference between the real value of the property and its value as represented to be, and not the amount paid by the vendee. Lunn v. Shermer, 93 N.C 165; Robertson v. Halton, 156 N.C. 218, 72 S.E. 316, 37 L. R. A. (N. S.) 298. The plaintiff was not entitled to judgment for $1,200, and it would have been error to instruct the jury to answer the second issue in that amount, if requested to do so.
The exception of the defendant to the judgment must be sustained as the action is in tort to recover damages, and not in contract. The principle is stated in Harper v. Railroad, 161 N.C. 451, 77 S.E. 415, as follows:
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