Hale v. Philbrick , 47 Iowa 217 ( 1878 )

Adams, J.

I. The plaintiff claims that the court erred in ■refusing to render judgment on the first finding of fact by the referees. The plaintiff*, however, was not entitled to recover upon that fact alone, to-wit: that the defendant made false representations to the plaintiff in regard to the amount of his interest in the firm. It was incumbent upon the plaintiff* to establish the further fact that plaintiff relied upon such representations in making the purchase. The referees found that he did not. This court, to be sure, set aside the finding as being contrary to the evidence, but it did not find as a fact that the converse was true, that plaintiff did rely upon the representations. This court was of the opinion that the evidence showed that to be true, but it was not for the court to find it as a fact and order judgment to be rendered accordingly, nor could the court below assume that such fact was found. We think, then, that the court did not err in submitting' that issue to a jury. It should, we think, have gone even farther and submitted the other issue also, as the defendant claimed should have been done. To conclude the defendant upon that issue was to deprive him of his right to appeal.

1. evidence: of witness011 II. Upon the trial the defendant was asked the following question: “ You have heard Sale’s statement here, saying that, you represented to him that you put in from $2,800 to $2,900; state what you know about that; what statement you made in reference to it.” The plaintiff objected, on the ground that the issue as to false representations had been settled by the referees, and that the only issue to be tried was whether Hale relied upon the representations.

In allowing the defendant to answer the question we think there was no error. Hale himself had testified as to what representations Philbrick made. We must presume that he deemed it important to show the language used by Philbrick under the issue which was being tried. Háving testified himself as to what Philbrick said, he cannot properly, claim that Philbrick should not have been allowed to testify in rebuttal upon that subject.

2. vendor and representa-86 dencé. III. The ledger of Gilbert & Philbrick showed a credit in favor of Gilbert for $1,000, and a credit in favor of Philbrick for $1,500, for money put by them respectively into the firm. The defendant offered the entries in evidence. The plaintiff objected ujion the ground that he was not a party to the ledger and had not even examined it.

The entries as between Gilbert and Philbrick were pri/ma facie correct. As the plaintiff bought Philbrick’s interest and took his place in the firm with Gilbert, it follows that as between the plaintiff and Gilbert they were prima facie correct. They were then admissible in evidence if there was anything proper to be shown by them, and we think there was. Conceding that Philbrick had made false representations, there was still a question as to what damages, if any, the plaintiff had sustained. Upon this question it was important for Phil-brick to show the value of the interest which he sold to the plaintiff, and that showing depended, to some extent, upon a compai’ison of the credits to which Gilbert and Philbrick were respectively entitled at the time of the sale.

IY. The plaintiff excepts to an instruction which was given in these words: “If you find from the evidence that plaintiff did rely upon the representations of the defendant that his capital in the firm of Gilbert & Philbrick was $2,850, and was induced thereby to make the purchase from the defendant, your verdict should be for the plaintiff for $1,000 and interest at six per cent from the date of the purchase.”

Whatever error there may be in this instruction, we do not think that the plaintiff should complain. In no event could his recovery have been greater.

Y. The plaintiff excepted to an instruction which was given in these words: “ In determining whether the plaintiff did or did not rely upon the defendant’s representations concerning the value of his capital, or was or was not induced thereby to make the purchase, you should consider everything that was done and said by the plaintiff in negotiating the purchase so far as the same may enable you to détermine the question before you.”

It is insisted by the plaintiff that this instruction is erroneous, because it submits to the jury the question as to the plaintiff’s reliance upon the defendant’s representations concerning the value of his capital, whereas the question before the jury was as to the plaintiff’s reliance upon the defendant’s representations concerning the amount of his capital.

Whatever capital the defendant put in was money, except a team which was put in at $300. We think that the words value and amount, as used in this connection, may be regarded as convertible terms.

3_._. reiiance YI. The plaintiff asked an instruction which is in these words: “It is not necessary that the jury should be satisfied that the plaintiff relied wholly upon the representations of the defendant in reference to the amount of capital which the defendant had in the business. If you find that it influenced or induced Hale to enter into the contract of purchase, you will find that the plaintiff relied upon the representations of the defendant in making the purchase.” The court refused to give the instruction and the plaintiff excepted.

The instruction might, we think, have been properly given, and yet we see no ground for supposing that the plaintiff was prejudiced by its being refused. It was not necessary to tell the jury that if the plaintiff was induced by the representa; tions to make the purchase, he must have relied upon them; they knew it as well without an instruction as with. N or do we think that the proposition contained in the first part of the instruction, that it was not necessary that they should be satisfied that the plaint ill' relied wholly upon the representations of the defendant, would have aided the jury. To .entitle the plaintiff to recover it should appear that the representations constituted a material inducement to making the purchase; that is, the jury should be satisfied that but for the representations the purchase would not have been made. Under the instructions given we think that the jury must have understood this to be the law of the case.

4>_._. injury from. YII. An instruction was asked by the plaintiff, which is in these words: “You have nothing to do with the question as to whether Hale made a good or bad trade in the purcbase of Pliilbrick’s interest, in the firm, or with the question as to how much, if anything, Hale ought to recover in this action, or with the equities of the parties under their respective claims; these questions are not submitted to you.”

The instruction was refused, and we think properly. To enable a person to recover for false representations, it must not only appear that he was misled by them, but that he was misled to his injury. Freeman v. McDaniel, 23 Ga., 354; Hanson v. Edgerly, 29 N. H., 343; Upton v. Vail, 6 Johns., 181; Nye v. Merriam, 35 Vt., 438; Vernon v. Keyes, 12 East., 637.

YI1I. Finally, it is claimed that tbe verdict is contrary to the evidence. This position also, we think, is untenable. The evidence shows that soon after the purchase Gilbert & Hale took an inventory of stock, and that it amounted to $4,000. Hale’s credit upon the books was several hundred dollars larger than Gilbert’s. He paid only $2,000. The evidence shows quite clearly, that what he bought was worth more than that. • If so, he not only did not sustain damages by reason of having made the purchase, but the jury might well have believed that the plaintiff was induced to make the purchase by the actual rather than the represented value of what he was buying.

Affirmed.