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was fraud practiced on the part of the defendant. While it appears to be a well settled rule of law in Michigan that deeds may be set aside on the ground of fraud, nevertheless it is equally a well settled rule of law that where the purchaser takes upon himself, as he did in this case, the responsibility of investigating the property, he was bound to rely, to some extent at least upon his own judgment. It appears that there was nothing done to prevent him from making full investigation as to its location, character and value.
"It is not the province of courts to make or unmake contracts for parties, and their province is to interfere only when they are satisfied that fraud has been practiced.
"I am not prepared to say that defendant's statements incident to the sale, coupled with plaintiffs' means and opportunities of making a complete investigation, which was not hampered in any way, amounted to fraud.
“Bill is therefore dismissed, with costs to the defendant. Decree so ordered."
We think the case was rightly decided. We are inclined to agree with the statement in the brief of defendant's counsel, that:
"A careful reading of plaintiffs' brief, of the bill of complaint and the facts set forth in the record, clearly indicates that plaintiffs place their entire case upon the single question that defendant, falsely and fraudulently, misrepresented the value of the property, and that such misrepresentation was a misrepresentation of a material fact and that they were deceived thereby and defrauded."
Indeed, plaintiffs' counsel states in his brief:
“The real question in the case is whether the farm was worth ten thousand dollars, for the plaintiffs bought it of the defendant upon her representation that it was worth ten thousand dollars."
The general rule with reference to representations as to value is thus stated in 14 Am. & Eng. Enc. Law (2d Ed.), p. 124:
“It is no doubt agreed that, as a general rule, if parties are dealing at arm's length and on equal terms, statements as to value made by one to the other, even when not mere expressions of opinion, cannot be relied upon; and that they will not amount to fraud, though known to be false by the party making them, and acted upon by the party to whom they are made"-citing Bristol v. Braidwood, 28 Mich. 191; Allison v. Ward, 63 Mich. 128; Walker v. Casgrain, 101 Mich. 604.
On page 125 of the same volume the following is stated as an exception to the general rule:
“The rule does not apply, however, when there is a relation of trust and confidence between the parties, nor generally when they are not dealing on equal terms, as where the value is, or is represented and believed to be, peculiarly within the knowledge, or means of knowledge, of the party making the representation, or in any other case where, from the nature and subject-matter of the transaction, reliance on the representation is clearly expected or intended. * Nor does the rule apply where, by the artifice and fraud of the party making the representation the other party is prevented from making inquiries which he would otherwise make,”-citing Picard v. McCormick, 11 Mich. 68; Kost v. Bender, 25 Mich. 515; Nowlin v. Snow, 40 Mich. 699.
This rule and exception are thus referred to in Pinch v. Hotaling, 142 Mich. 521, at page 525:
“The contention is made that the statement of value was a mere matter of opinion, and cannot be made the basis of an action for fraud. This is a statement of the general rule, but the rule established by the weight of authority is that false statements of value intentionally made to one who is in ignorance of the quality and value, under circumstances indicating a purpose that such statements are to be relied upon, and where the party to whom they are made has no opportunity to examine the property, may be treated as an affirmation of fact and fraudulent,”-citing Collins v. Jackson, 54 Mich, 186; Maxted v. Fowler, 94 Mich. 109; 16 Cyc. p. 749; 14 Am. & Eng. Enc. Law (2d Ed.), p. 125.
Upon a careful examination of the record in this case, we are convinced that plaintiffs have failed to establish a case within the scope of the exception to the general rule.
In the recent cases of Pound v. Clum, 204 Mich. 28, and Pratt v. Allegan Circuit Judge, 177 Mich. 558, upon which the decision in the former case was based, the representations were that the property could be sold upon the market for a certain price, and it was upon this representation that the vendees relied. The court properly held that such a representation was a representation of a material fact, the falsity of which could be relied upon in an action of this kind. It must be clear that to express an opinion that a property is worth a certain amount is different from saying that the market value of that property is a certain amount. The first would be merely the expression of an opinion, which might be well founded or not, while the latter would not be the expression of an opinion, but the statement of a fact. This, in our opinion, clearly distinguishes these cases from the one now before us. There is also nothing to indicate that Mr. Hammer gave Mrs. Martin to understand that he was relying on her statements as to value or that he regarded her as an authority on the value of property in that vicinity, which, in our opinion, also distinguishes the case from Pound v. Clum, supra, where it was said:
"It is in evidence that plaintiffs told defendant Clum and his agent, Heine, that they were totally ignorant of the values of the Saginaw property, and that they relied upon the representations as to value made."
Mr. Hammer understood that he was dealing with the owner of the property, not an agent. Before the transaction was closed, he had the abstract of title, from which, presumably, he might have learned that Mrs. Martin had owned the property but a short time. Whether or not it disclosed the consideration paid by her on her purchase of the farm does not appear. He seems to have been given every opportunity to inspect the property as often and as thoroughly as he saw fit. Had he desired, he might, prior to his purchase, have made inquiries as to the general nature and value of farm property in that vicinity, as well as of that farm in particular, from the same neighbors who afterwards volunteered the discouraging information which led to this proceeding. The fact seems to stand out clearly that he was so well pleased with the partial survey of the premises which he personally made on his first visit that he did not care to take the time to make a further inspection, but announced himself as willing to buy it on the spot, if he had had the ready money. The plaintiffs have not met the burden of establishing fraud, and the decree dismissing the bill of complaint is therefore affirmed.
BIRD, C. J., and OSTRANDER, MOORE, STEERE, BROOKE, FELLOWS, and STONE, JJ., concurred.
PEOPLE V. MOKEIGHAN.
1. CRIMINAL LAW-ROBBERY-INFORMATION-SUFFICIENCY-PRINCIPAL AND ACCESSORY-DISTINCTION ABOLISHED, An information under 3 Comp. Laws 1915, § 15208, charging
defendant as principal with the commission of the crime of assault and robbery, not being armed with a dangerous weapon, was sufficient to sustain a conviction, although the evidence showed that defendant advised and counseled the commission of the act, since the distinction previously,
existing between principals and accessories was abolished
by 3 Comp. Laws 1915, § 15757.
providing that money or goods lost in gambling may be
the question of intent.
Instructions that did not clearly state to th jury that it
was necessary that the defendant had a criminal intent
have been the subject of larceny, held, insuficient. 4. SAME-ROBBERY-ASSAULT_SIMPLE ASSAULT.
An intent to commit a simple assault would not justify a
conviction upon the charge alleged in the information. 5. SAME-GOOD CHARACTER-INSTRUCTIONS—TRIAL.
Good character is a proper element to be considered by
the jury in every criminal case where an attempt is made
stantial cases, held, improper and reversible error.
prosecutor, without asking for an opinion or ruling of
Error to Genesee; Black, J. Submitted January 17, 1919. (Docket No. 118.) Decided April 3, 1919.
William H. McKeighan was convicted of assault and robbery, not being armed with a dangerous weapon, and sentenced to imprisonment for not less than two years nor more than fifteen years in the State reformatory and house of correction at Ionia. Reversed.
Edward N. Barnard (Thomas F. Stockton, of counsel), for appellant.
See note in 14 L. R. A. 226.