Lindow v. Mudge
| Citation | 226 N.W. 656,247 Mich. 624 |
| Decision Date | 04 September 1929 |
| Docket Number | No. 17.,17. |
| Parties | LINDOW et ux. v. MUDGE et ux. |
| Court | Supreme Court of Michigan |
OPINION TEXT STARTS HERE
Error to Circuit Court, Wayne County; Major L. Dunham, Judge.
Bill to rescind contract, trading property, by Herman Lindow and wife against Harry E. Mudge and wife. Judgment for plaintiffs, after case was transferred to the law side, and defendants bring error. Affirmed.
Argued before the Entire Bench. Frank A. Martin and H. B. Zirkalose, both of Detroit, for appellants.
Leroy W. Belongy and Frank P. Darin, both of Detroit (Edgar C. Ashmead, of Detroit, of counsel), for appellees.
Plaintiffs traded property in the city of Detroit with defendants for a farm in Livingston county. They filed a bill to rescind, after the property transferred to defendants had been sold to parties who upon this record were good-faith purchasers. After a hearing the case was transferred to the law side, the court finding in the order that defendants were guilty of fraud. The propriety of making this order, or of its contents is not questioned. The case was tried to a jury without any change of pleadings, and upon the theory that a fraud was perpetrated on plaintiffs; the trial judge thus instructing the jury:
‘There isn't any claim of fraud or misrepresenting on the part of either Mudge or Moore as to the value of that farm so far as soil and that thing is concerned, but they claim that Moore and Mudge induced them to exchange their property for this farm upon the representation Mudge would furnish them two thousand dollars with which to go and do the farming; that that is the active fraud they are relying upon here and is the fraud they are seeking in this action to recover damages for.'
In this court it is urged that the agreement of Mudge to furnish plaintiffs money to go to farming with was not misrepresentation of existing facts, was promissory only, and did not constitute fraud, and Boston Piano & Mustice Co. v. Pontiac Clothing Co., 199 Mich. 141, 165 N. W. 856, is invoked. We have searched this record with care, and we fail to find a single place where any such claim was ever intimated in the trial court; there is no assignment of error on the language found in the charge and above quoted; there was a motion for a directed verdict, but it was on entirely other grounds, which will be presently considered; there was no request to instruct the jury along the line of the rule laid down in the cited case; and there was no objection to the voluminous testimony given on the subject. Under cases too numerous to cite, we may not reverse this case on this ground.
There was some personal property on the farm which went to plaintiffs in the deal. They testify that, upon failure of defendant to furnish money as agreed, they were obliged to sell the personal property in order to live. Defendants' counsel moved for a directed verdict, on the ground that this placed plaintiff's in a position where they could not put defendants in statu quo. This motion was denied, but the trial judge instructed the jury that plaintiffs must be charged with the value of the property so used. There is no assignment of error on this instruction. There was but little evidence of the value of the personal property in the case, defendants not availing themselves of the opportunity of showing its value. The record signally fails to show that its value was in any degree consequential, when the entire amount of the deal is considered. The...
To continue reading
Request your trial
-
Mesh v. Citrin
...have repeatedly held that motion for new trial cannot be made the vehicle for raising questions not raised on the trial. Lindow v. Mudge, 247 Mich. 624, 226 N.W. 656;Tishhouse v. Schoenberg, 234 Mich. 271, 207 N.W. 866. However, plaintiff's testimony shows that on several occasions he compl......
-
De Grave v. Engle, 77
...for the first time on a motion for a new trial. Meeuwsen v. Clough & Warren Co., 207 Mich. 697, 175 N.W. 408. See also, Lindow v. Mudge, 247 Mich. 624, 226 N.W. 656; Mesh v. Citrin, 299 Mich. 527, 300 N.W. We are in accord with the trial court's finding that the accident occurred solely as ......
- J. J. Fagan & Co. v. Burns
-
Lindow v. Mudge, 29.
...the representations, if made, were only promissory in character, and did not constitute fraud. The case was affirmed in Lindow v. Mudge, 247 Mich. 624, 226 N. W. 656, wherein it was held that, in an action for fraud in the exchange of property, where no objection was made in the trial court......