Rathbun v. Parker ( 1897 )

Grant, J.

(after stating the facts). 1. After the testimony was closed and the arguments had, the court permitted the plaintiff to amend his declaration by adding thereto that defendant ‘ ‘ represented that Daniel J. Cam-pan, a politician, and chairman of the Democratic State Central Committee, had purchased a small amount of territory for a large price, and had paid therefor $10,000, and that he was a millionaire, and would not have gone into it if it had not been a good thing.” I do not think that the original declaration stated a cause of action. The sole representation was as to the value of a patent right, coupled with a promise by defendant to buy a half interest, and to enter with plaintiff into the business of manufacturing. It was a statement of a mere opinion, and the declaration fails to state — what the proof shows —that plaintiff examined the screen before buying, and Avas as competent to judge of its value as was the defendant. Defendant was entitled to know before proceeding to trial what the representations were upon which he was to be held liable for the value of plaintiff’s goods, none of which he had received, and from the sale of which he had derived no benefit. The learned circuit judge allowed the amendment upon the theory that the record disclosed that all those who were shown to have heard the representations had been witnesses in the case. The question was raised as to the competency of this testimony under the original declaration when the first witness was upon the stand. Plaintiff did not then ask to amend, but waited until the court was proceeding to instruct the jury. I do not think the amendment should have been permitted at this stage of the case.

2. Two special questions were submitted to the jury: (1) “Did Parker give any valuable consideration for his share of the patent, and did it equal the amount paid by Rathbun?” To this question 10 jurors voted “No,” and it does not appear that the other two jurors voted. (2) “If you answer ‘Yes’ to this question, did Parker get it back again, or any part thereof, without paying for it?” To this one juror voted “Yes,” and one voted that Parker paid $700 for his two notes of $400 each. It does-not appear how the other 10 voted. No objection was made to the submission of these questions. They bore upon the good faith of defendant. It would be difficult to understand how a jury would find defendant liable if he fulfilled his agreement with plaintiff, and paid his full share of the purchase price. Men are not in the habit of making false and fraudulent representations for the purpose of defrauding their neighbors without receiving a consideration. The testimony presents some very peculiar features, not necessary to note, and these questions involve very important and material testimony. It was error to receive a general verdict without compelling an answer to these special questions.

3. When the defendant was testifying, counsel for the plaintiff objected to a question, in the following language: “ Objected to. They must first show that the man has a conscience.” Since the case must be reversed for other reasons, we refrain from commenting upon this language. Its use is not likely to occur upon a new trial. Carter v. Hill, 81 Mich. 280; Sullivan v. Deiter, 86 Mich. 404; Clink v. Gunn, 90 Mich. 140.

Several questions are raised upon the admission and rejection of testimony, but it is not necessary to discuss them.

Judgment reversed, and a new trial ordered.