Linerode v. Rasmussen

• Decision Date: 18 December 1900
• Parties: LINERODE v. RASMUSSEN.
• Court: Ohio Supreme Court

59 N.E. 220

63 Ohio St. 545

LINERODE v. RASMUSSEN.

Supreme Court of Ohio.

December 18, 1900

Error to circuit court, Stark county.

Action by one Linerode against one Rasmussen. Judgment for defendant was affirmed in the circuit court, and plaintiff brings error. Reversed.

The plaintiff in error was plaintiff below, and filed his petition in the court of common pleas of Stark county against the defendant in error to recover on five promissory notes three of which, being for $2,800 each, were due, together with interest thereon, and two of which notes, aggregating $2,200 principal, were not due. The plaintiff sought to foreclose a mortgage securing these notes, and the defendant in his answer sought to recoup in damages $4,300 for misrepresentations alleged to be made by the plaintiff, at the time the farm was transferred to him by the defendant. The misrepresentation charged was that the plaintiff represented that underlying said premises was a 3 or a 3 1/ 2 foot vein of good bituminous, minable coal. The reply was, in substance, a general denial. The verdict was for the defendant. Motion for a new trial was overruled and judgment rendered on the verdict, and on petition in error in the circuit court the judgment of the court of common pleas was affirmed. To reverse this action of the circuit court the petition in error is filed here.

Syllabus by the Court

Where the defendant was sued on notes given for purchase money for a farm, and sought to recoup damages on the ground that the plaintiff had represented that ‘underlying said premises was a three or three and a half foot vein of good bituminous, minable coal,’ whereas there was no coal whatever under said premises, the measure of damages is the difference between the value of the farm as it was represented to be and its actual value at the time of the purchase.

Virgil P. Kline and McCarty, Craine &amp McDowell, for plaintiff in error.

Charles C. Upham, for defendant in error.

PER CURIAM.

Assuming that the plaintiff made the representation as asserted by the defendant, and that it was not a mere puff or an expression of opinion, the true measure of damages would be the difference between the value of the farm as it was represented to be and what it was actually worth at the time of the purchase. The trial judge seemed to recognize this but said to the jury that by consent counsel had adopted as the rule of damages the value of the coal per...