Pendergast v. Reed , 29 Md. 398 ( 1868 )

Miller, J.,

delivered the opinion of the court.

By the first exception it appears that after the testimony was closed, and before the case was given to the jury, the ^'proceedings were allowed to be amended by striking out the name of one of the two defendants, against whom the suit was brought, and leaving it to stand against the other. No objection to this action of the court has been made by the appellant’s counsel in argument, and it is fully authorized by the provisions of the Code, Art. 75, sec. 23, 27, 28.

At the trial the plaintiff stated that he relied solely upon, and confined his right to recover against the appellant, to the fifth count of his declaration, and the case has been argued here as if the declaration was against the appellant alone, and contained only that count. So considered, the declaration avers, in substance, that the defendant was part owner of a vessel called the “ Cumberland,” and authorized to appoint her master; that the plaintiff applied for this appointment, and the defendant agreed to appoint him in consideration that he would take an eighth interest in the vessel, at the cost price thereof, in order to insure the greater care and diligence on his part in the discharge of his duties as master; that the defendant falsely and fraudulently, and with intent to injure and deceive the plaintiff, represented the cost price of the vessel to have been $34,000, and required the plaintiff to pay him one-eighth of that sum for one-eighth interest in the vessel, in consideration for receiving said appointment as master; that not knowing the defendant had falsely and fraudulently represented the cost price of the vessel to be greater than it really was, the plaintiff agreed to the terms proposed by the defendant, and in pursuance of this agreement, paid him $4,250, one-eighth of said alleged cost price, and was thereupon appointed master; that the cost price of the vessel was not $34,000, but only $25,500, which the- defendant well knew at the time he made said false and fraudulent representation to the plaintiff, and at the time he received from him the $4,250, and by means of said false and fraudulent representation the plaintiff was injured, and hath sustained damage, &c.

A good ground of action is here set out. It is not simply the case of a false affirmation by a vendor, concerning the *value of the thing sold, where information on the subject was easily within the reach of the vendee, and where the law would regard it the folly of the latter to credit the assertion, but of a false representation of a material fact known to the defendant, and by means of which the plaintiff was induced to part with his money. The very essence of the contract here stated, was a purchase for certain considerations of one-eighth of the vessel at its cost price to the defendant, and a false representation of this price, inducing the plaintiff to buy worked an injury to him for which he is entitled to recover, even if the actual value of the share purchased, equalled or exceeded what it would have been, had the representation been true. He had the right to all the profits of his purchase and contract as he made it, and it is no answer to his action to say, that though the representation was false, yet the actual value of the thing sold is equal to what such false representation induced him to pay for it.

At the time this contract was made, the defendant owned ■five-eighths of the vessel, and the plaintiff paid him for one of these eighths, the sum of $4,250, or at the rate of $34,000 for the whole vessel. As to these facts there is no dispute, and we are of opinion there was evidence in the case proper to be submitted to the jury, and from which they were at liberty to find, that the contract between the parties was as stated in the •declaration, and that the defendant made the false representation as therein stated, and that the plaintiff, relying upon this representation, paid him the $4,250. The only remaining question then is, were the jury properly instructed as to the measure of damages, assuming they would find the facts as stated in the declaration in favor of the plaintiff ? Upon the assumption they would so find, there is no difficulty in fixing the standard of damages. It is the difference between the sum paid by the plaintiff for the share, and the actual cost price thereof to the defendant. There is evidence that this cost price was at the rate of $25,500, whilst the defendant represented it to have been at the rate of $34,000 for the *whole vessel. The measure of damages may therefore be stated to be either the difference between one-eighth of the actual, and one-eighth of the' represented cost rate, or one-eighth of the difference between the actual and represented cost rate of the entire vessel. The plaintiff’s prayer, which was granted, adopts the latter mode of stating the proposition, and we do not think it open to the objection that it was calculated to mislead the jury into finding the whole, instead of one-eighth of the difference between the actual and represented cost price of the vessel. The prayer requires the jury to find for the plaintiff on the fifth count of the declaration, before they can consider the question of damages. This count alleges the purchase of an eighth interest only, and claims damages for misrepresentation on that account alone. By this reference to the declaration the jury were told in sufficiently plain terms, that the measure of damages was one-eighth and not the whole of the difference between the actual and represented cost price of the vessel.

There was no error in rejecting the defendant’s prayers, which define the measure of damages to be the difference between the amount paid and the actual value of the share sold at the time of the purchase. We have already indicated our views upon this subject. These prayers correctly fix the measure of damages in case of an action by a vendee against a vendor, for a false representation as to the condition or quality of the article sold, or in a suit for misrepresentation as to value, supposing such an action could in any case be maintained. Such, however, is not the nature of the present case. It is not an action for misrepresentation as to value, but as to cost price. The agreement stated in the declaration, has no reference to the actual value of the vessel. Whether that were great or small makes no difference as to the plaintiff’s rights, and cannot diminish or increase the measure of his damages.

Judgment affirmed.