Wuerth v. Stivers

• Citation: 273 Mich. 276,262 N.W. 908
• Decision Date: 30 October 1935
• Docket Number: No. 74.,74.
• Parties: WUERTH v. STIVERS et al.
• Court: Supreme Court of Michigan

273 Mich. 276

262 N.W. 908

WUERTH

v.STIVERS et al.

No. 74.

Supreme Court of Michigan.

Oct. 30, 1935.

Action by J. Fred Wuerth against Frank A. Stivers and George E. Paul. From a judgment in favor of the plaintiff against Frank A. Stivers, the said Stivers appeals, and from a judgment of no cause for action in favor of George E. Paul, the plaintiff cross-appeals.

Affirmed.

WIEST, J., and POTTER, C. J., dissenting.

Appeal from Circuit Court, Washtenaw County; Glenn C. Gillespie, judge.

Argued before the Entire Bench.

Frank B. DeVine and Joseph C. Hooper, both of Ann Arbor, for appellant Frank A. Stivers.

Andrew J. Sawyer and Jacob F. Fahrner, both of Ann Arbor, and Ezra H. Frye, of Detroit, for appellee J. Fred Wuerth.

BUSHNELL, Justice.

This is an action to recover damages which plaintiff claims to have sustained because of false representations and statements made to him by defendants regarding the accounts, bills payable, and earnings of the Ann Arbor Floral Company by reason of which he was induced to indorse a promissory note for $13,734.75, due in four months and payable to the First National Bank & Trust Company of Ann Arbor. The note was renewed with plaintiff's indorsement, shortly after its maturity, and on November 13, 1930, a bill for the appointment of a receiver for the company was filed and shortly thereafter it was adjudged a bankrupt. The renewal note being unpaid, the bank brought suit against plaintiff and his co-indorsers, and on appeal a final judgment was entered in favor of the bank for the amount of the note and interest against the maker and all the indorsers. See First National Bank & Trust Co. v. Wuerth, 262 Mich. 691, 247 N. W. 784. Wuerth there claimed his signature was obtained through fraud, but defendant Stivers was not a party to that action. The bank, later, levied on some of Wuerth's property in Ypsilanti, and Mrs. Wuerth filed a bill seeking reformation of a deed, etc., in an attempt to frustrate the levy. See Wuerth v. Wuerth, 270 Mich. 628, 259 N. W. 346. The two opinions referred to give much of the factual background of the instant case.

The zeal of counsel has caused them to wander far afield. They are undoubtedly aware of the many unnecessary additions, by way of repetition in the record, because their attention was challenged to this at various times by the learned trial judge. We feel prompted to add that little is gained by repetition in the brief of over nine pages of the complete text of the trial court's opinion in determining the motion non obstante, to say nothing of space devoted to arguments based on facts dehors the record.

The trial court submitted six special questions to the jury and stated in connection therewith: ‘Something was said yesterday about the way in which these questions should be answered in order to arrive at a verdict. That is not the reason these questions are submitted to you. You are not to approach these questions with the thought in mind that you are going to find a verdict for either one party or the other. The questions are submitted to you for your answers under the testimony and the instructions of the court without regard to what effect the answers will have on either the plaintiff or the defendant. That is the sole and only purpose in submitting them to you, that they may be answered under the testimony and under the instructions of the court and not with the thought in mind that your answers are going to render a verdict either for or against either of the parties.’

These questions with their answers and accompanying instructions are:

‘Question No. 1: On May 21, 1930, on the occasion of plaintiff's endorsing the $13,734.75 note of John H. Lundgren, did the defendant, Frank A. Stivers, make representations to the plaintiff as to the amount of accounts or bills payable or the earnings of the Ann Arbor Floral Company?

‘Answer: Yes. (Instruction to jurors: If your answer to question No. 1 is ‘No,’ the remainder of the questions need not be answered, otherwise you should next answer question No. 2.)

‘Question No. 2: If the defendant, Frank A. Stivers, made statements to the plaintiff on the occasion of plaintiff's endorsing the $13,734.75 note of John H. Lundgren relative to the accounts payable or the earnings of the Ann Arbor Floral Company, did the defendant knowingly and falsely misrepresent the true amount of the accounts or bills payable or the earnings of the Ann Arbor Floral Company, for the purpose of inducing the plaintiff to endorse the note?

‘Answer: Yes. (Instruction to jurors: If your answer to question No. 2 is ‘No,’ the remainder of the questions need not be answered, otherwise you should next answer question No. 3.)

‘Question No. 3: Prior to endorsing the note on May 21, 1930, did the plaintiff receive information from persons other than defendant, Frank A. Stivers, or, from documents in his possession, or, shown to him by anyone other than the defendant, as to the amount of the accounts or bills payable and the earnings of the Ann Arbor Floral Company, that induced him to endorse the $13,734.75 note of John H. Lundgren?

‘Answer: No. (Instruction to jurors: If your answer to question No. 3 is ‘Yes,’ the remainder of the questions need not be answered, otherwise you should next answer question No. 4.)

‘Question No. 4: Did the plaintiff believe the statements and representations referred to in question No. 2 to be true when he endorsed the note?

‘Answer: Yes. (Instruction to jurors: If your answer to question No. 4 is ‘No,’ the remainder of the questions need not be answered, otherwise you should next answer question No. 5.)

‘Question No. 5: Did the plaintiff rely upon the statements and representations referred to in question No. 2 when he endorsed the note?

‘Answer: Yes. (Instruction to jurors: If your answer to question No. 5 is ‘No,’ the remainder of the questions need not be answered, otherwise you should next answer question No. 6.)

‘Question No. 6: If the plaintiff is entitled to recover, at what amount do you assess his damages under the testimony and instructions of the court?

‘Answer: $16,730.06.’

We note that the question were framed so as to embrace each of the elements of fraud stated in Candler v. Heigho, 208 Mich. 115, 175 N. W. 141, 143: ‘The general rule is that to constitute actionable fraud it must appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth, and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he...