Monroe v. Hoffman
| Decision Date | 16 June 1936 |
| Docket Number | No. 151.,151. |
| Citation | 267 N.W. 836,276 Mich. 281 |
| Parties | MONROE v. HOFFMAN. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by Howard C. Monroe against Ernest C. Hoffman. From an adverse judgment, the defendant appeals.
Affirmed.
Appeal from Circuit Court, Berrien County; Chas. E. White, judge.
Argued before the Entire Bench, except SHARPE, J.
Philip C. Landsman, of Buchanan, and Burns & Hadsell, of Niles, for appellant.
Stuart B. White, of Niles, for appellee.
This is an action to recover the balance due plaintiff from defendant on the purchase price of a motion picture theater located in Buchanan, Mich. Defendant in his answer claimed that plaintiff misrepresented the deal to him; that as a result he was defrauded; and he seeks to recoup his alleged resultant damages. Jury trial was had, and at the close of proofs plaintiff moved for a directed verdict. The motion was taken under advisement by the trial court and the case submitted to the jury. The jury could not agree, and was discharged by the court. Thereafter, plaintiff again moved for a directed verdict, which was granted, and judgment was entered for him in the sum of $2,818.75. Defendant appeals therefrom.
Appellant presents for review the question of whether the trial court erred in determining, as a matter of law, that the defendant had by his actions waived his right to complain of the alleged fraud upon the part of plaintiff.
The agreement between the parties for the sale and purchase of the theater was executed April 17, 1935. It was in writing, and was an executory contract. By its terms, it provided for a down payment of $1,000, and that an additional $2,500 should be paid plaintiff by defendant on or before May 1, 1935, and that of the balance, $3,000 was to be paid in 24 monthly installments of $125 each, beginning on June 1, 1935, and payable on the first of each month thereafter. As part of the purchase price, defendant agreed to assume and pay $265.44 then owing by plaintiff for air-conditioning equipment installed in the theater.
Defendant paid the $1,000 down payment on April 17, 1935, and took possession of the theater, which he proceeded to operate.
Thereafter, he discovered, he testified, that plaintiff had misrepresented to him several conditions about the theater relative to the projecting machines, the airconditioning equipment, structural improvements, and the lease, which misrepresentations had caused him to be defrauded. It is not necessary, in view of the question here presented, to recount the details of the alleged fraud, for we shall, because of the nature of the question involved, consider the testimony in a light most favorable to defendant, and therefore shall, for the purpose of decision, assume the fraud to have been effected.
The defendant testified that he discovered some evidence of the alleged fraud shortly after the consummation of the deal. He testified further that he had full knowledge of the claimed fraud on July 5, 1935, or within three or four days thereafter.
On May 10, 1935, plaintiff left Buchanan and went to California, but before he departed defendant paid him $1,000 of the $2,500 payment due May 1st. Defendant testified that it was understood between plaintiff and himself that he would pay the $1,500 balance of such payment July 1st.
On July 5th, defendant wrote to plaintiff as follows:
Plaintiff, on July 12, wired from Long Beach, Cal., requesting immediate payment of the $1,500 due.
On July 15th, defendant again wrote plaintiff by special delivery mail as follows:
In reply to the letter of defendant dated July 5, plaintiff on July 16, from Long Beach, wired defendant that he could not oblige him as requested, and demanded immediate payment of the $1,500 due.
Then occurred the following interchange of telegrams which are self-explanatory:
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Grand Trunk Western R. Co. v. HW Nelson Co.
...the fraud by performance with knowledge of the fraud acquired subsequent to the making and previous to the performance. Monroe v. Hoffman, 276 Mich. 281, 267 N.W. 836; Van Scherpe v. Ulberg, 232 Mich. 699, 206 N.W. We are not permitted to pass on the weight of the evidence and, taking the v......
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Wiederhold v. EMC Mortg. Corp., 10-cv-13414
...his right to rescind the contract. See Foster Mach. Co. v. Corel Mfg. Co., 219 Mich. 455, 189 NW 228, 231 (1925); Monroe v. Hoffman, 276 Mich. 281, 267 NW 836 (1936), overruled, in part by, Edson v. Harris, 356 Mich. 175, 96 N.W.2d 767(1959);4 Allendale Mut. Ins. Co. v. Triple-S Technologie......
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Allendale Mut. Ins. Co. v. Triple-S Technologies, Inc.
...misrepresentation at the time of the fire. In support of this proposition, it cites a case from 1936. However, Monroe v. Hoffman, 276 Mich. 281, 267 N.W. 836 (1936), concerned an executory contract. The buyer of a theater sought the return of his money on the basis that plaintiff misreprese......
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Nowicki v. Podgorski, 48
...is not concerned, even though it is often difficult to tell which question a court is dealing with.)' Appellants rely on Monroe v. Hoffman, 276 Mich. 281, 267 N.W. 836; McKinney v. Gillmore, 307 Mich. 155, 11 N.W.2d 841, and Lisowek v. Bagozzi, 354 Mich. 398, 93 N.W.2d 279. It may be noted ......