Page v. Wells

• Decision Date: 23 October 1877
• Citation: 37 Mich. 415
• Court: Michigan Supreme Court
• Parties: Stephen F. Page v. Willard B. Wells

37 Mich. 415

Stephen F. Page v. Willard B. Wells

Supreme Court of Michigan

October 23, 1877

Argued October 3, 1877

Error to Ionia. (Lovell, J.)

Assumpsit. Defendant brings error. Reversed.

Judgment reversed, with costs, and a new trial ordered.

Mitchel & Pratt for plaintiff in error.

A. B Morse for defendant in error. Information acquired by labor and skill is salable as property, Palmer v. De Witt 47 N.Y 537, and minutes of land are personal property, subject to contract and warranty, as well as a squatter's claim Bowman v. Torr 3 Ia. 571. A warranty need not be in express words, but especially when made by one who has particular knowledge of the subject, may consist in a positive, unequivocal and express affirmation of the quality and condition of the property sold, showing an intention to warrant its quality and relied on as such instead of as a mere recommendation and expression of opinion, Chapman v. Murch 19 Johus. 290; Sweet v. Bradley 24 Barb. 549; Hughes v Funston 23 Ia. 259; Hilliard on Sales, 258, and when thus positive the vendor cannot claim that he did not intend his representations as a warranty, Hawkins v. Pemberton 51 N.Y. 202. Money paid for information upon the strength of the information it contains, forms a consideration for a warranty of its truthfulness, Congar v. Chamberlain 14 Wis. 258.

OPINION

Cooley, C. J.

The special count on which a recovery was had in this cause was as follows: The plaintiff complains "for that whereas, heretofore, to-wit, on or about the 1st day of May, A. D. 1872, the said defendant being then engaged in the business of selling the descriptions of wild land, which were subject to private entry and sale by the United States, and also by the State of Michigan, upon the recommendations and representations of the said defendant as to the quantity and value of the lands which such descriptions represented, did on the day and date aforesaid, and at the city of Ionia in the said county of Ionia, in consideration that the said plaintiff, at the special instance and request of him, the said defendant would purchase of him, the said defendant, at and for the price of one hundred dollars for the descriptions of each and every eighty acres of land hereinafter mentioned, the minutes or particular descriptions of land by him, the said defendant, designated and named as follows, to wit: [describing a number of lots], all in town nineteen north, of range eighteen west in the county of Mason in said State, to be paid to him by the said plaintiff, to the said defendant, then faithfully undertook, promised and represented to the said plaintiff that the said lands were of the quality and had then growing thereon timber of the kind, quantity and quality hereinafter designated, that is to say, that there was then and there growing upon the said northwest quarter of the northeast quarter of said section 30, in town 19 north, of range 17 west, one hundred and fifty thousand feet of good quality of cork pine, trees of large size; that the soil was sandy and of second rate quality, and besides pine, said land also had growing thereon a large quantity of valuable hemlock trees intermixed with beech and soft maple [and so on, giving the alleged representations as to each of the other parcels].

"And the said plaintiff thereupon informed said defendant that if he purchased of him the said minutes and descriptions of land, it was for the purpose of purchasing the lands themselves of the United States and of the State of Michigan, according as he might ascertain which of said governments owned the same, and by reason of their value on account of the timber growing thereon that would make such land valuable and profitable for lumbering purposes, and by reason of their value for farming purposes after all the timber fit for good lumber has been cut off of the same, and having never seen said lands, or any of the same, he should rely upon the promises and upon the representations and undertakings of the said defendant concerning the same hereinbefore set forth. And the said defendant so being informed by the said plaintiff did at Ionia aforesaid, on or about the 1st day of May aforesaid, sell the said plaintiff each and every of the said descriptions of land for the purposes aforesaid, and at the special instances and request the said plaintiff then paid him therefor the sum of one hundred dollars for each description of eighty acres of land, making in all the sum of nine hundred and fifty dollars, relying upon the promises, undertakings and representations of him, the said defendant, of and concerning the said lands and their quality and of and concerning the quality and quantity of timber growing thereon as aforesaid.

"And the said plaintiff further avers that afterwards, to wit: on or about the 9th day of May, 1872, and relying upon the said promises and undertakings of the said defendant, he, the said plaintiff, at great expense, purchased [the said lands of the United States and of the State of Michigan, paying therefor sums of money which are specified; that he has ever since been owner thereof and paid out large sums in taxes and] in ascertaining in fact the quality and quantity of said lands, and of each and every parcel thereof, and the quality and value of the timber growing thereon. And although he in all respects kept and performed his agreements with said defendant, and paid him the said sum of nine hundred and fifty dollars for the said minutes and descriptions of land, yet the said plaintiff in fact alleges that the said lands were not of the quality, and did not then have growing thereon, nor on any of the said descriptions thereof, pine trees or hemlock, either of the quantity or quality so promised and represented by the said defendant to the said plaintiff as hereinbefore set forth, but on the contrary thereof the said land had no such timber growing thereon and was not of the quality so promised by the said defendant, and was of no value whatever either for farming purposes, or for any of the purposes for which the said plaintiff purchased the said minutes of said defendant, and said lands aforesaid whereby said plaintiff hath suffered great damages, to wit: the sum of six thousand dollars."

The theory of this count, as we understand it, is that Page having special knowledge regarding certain parcels of government lands which would be valuable to persons contemplating the purchase thereof, was engaged in the business of selling descriptions thereof, as one might sell a valuable secret as property, and that in the course of that business he sold to the plaintiff his knowledge of the several parcels of land which the plaintiff subsequently purchased, giving a...