Jones v. Wing & Dean

1 Harr. Ch. 301

• Court: Michigan Court of Chancery
• Decided: July 1, 1841
• Status: Published

Opinion

The Chancellor.

The bill in this case charges that the complainant (a resident of New York,) on the 1st of October, 1839, had at Marshall, in this state, a large quantity of goods.

That Wing and Dean, (the defendants,) were then merchants at Marshall, and that the complainant entrusted a part of the goods to them to be sold on his account.

That they proposed to buy the goods of the complainant, and pay for them in lands in the county of Clinton, and with a view to induce the complainant to take the lands, made to him the following representations : That of the one thousand two hundred acres, the northern six hundred and forty acres were the most valuable pine lands in the state ; that they would average from seventy to ninety trees per acre, and those from two and a half to five feet in diameter. That they had actual knowledge of the quality of the lands from their own examinations, and that they would warrant there were forty trees per acre on the six hundred and forty acres. And that they also stated that there was a good mill site, by which a fall of six or eight feet could be obtained on Maple river:

The sale was consummated on the eighteenth of December ; tl^e complainant soon after went to examine the lands, when he found as is alleged, that out of the six hundred and forty acres there was not more than one hundred and fifteen acres of pine timber.

The complainant returned to Marshall in the month of February following, and saw the defendant Dean, to whom he immediately represented that he had been defrauded, and demanded restitution, which was refused.

The principal point in the case is, as to the representations made respecting the quality of the lands.

The answer of the defendants admits the sale of the goods for the consideration stated in the bill. They deny that they iepresented the six hundred and forty acres as the most valuable pine lands in the state, and that they would average from seventy to ninety trees per acre, and that they would warrant there were forty pine trees to the acre, from two and a half to five feet in diameter on the whote 640 acres. It is proper here to say, that the answer in this respect is not entirely satisfactory. If an allegation is made with divers circumstances, the defendant should not deny it litorally as laid in the bill, but should answer the point of substance positively and" certainly.

The defendants in their answer further say, that of the eight lots they stated that four certainly had pine timber on them, on another they thought there was pine, but were not sure ; that they had examined five, perhaps six, of the lots the summer before, but had not examined the other two. That in December 1839, they told the com. plainant in the presence of Samuel Camp and R. B. White, that as they thought there were 40 pine trees on an acre on the land where the pine grew. There are other allegations in the bill, which are totally denied. There is a great' discrepancy between the bill and the answer, and we are compelled to resort to the testimony, to ascertain the character of the representations concerning the land which is the principal subject of controversy.

The answer of the defendants refers to statements made in the presence of White and Samuel Camp. Mr. Camp says “that Mr. Dean stated that, that land of their’s up north would ayerage from sixty to ninety pine trees per acre, from two and a half to five feet through, and from sixty , to ninety feet to the limbs ; and this conversation was had but a day or two before the bargainVas consummated.” This testimony is substantially corroborated by that of White, and in some respects the testimony of White is still stronger. On being asked what proportion of the lots did Wing, and Dean represent as having pine on them, he replied, that the expression was unqualified; and it was, that the pine lands would have from sixty to ninety trees to the acre ; and one of the defendants said he thought he would not be afraid to warrant forty trees to the acre., On being asked if the defendant referred to the whole or a part,, says he did not refer to any particular part.

The testimony of George E. Savage alone sustains to some extent the ground taken in the answers. He left Marshall some time before the conversation referred to by Camp and White, and before the bargain was closed. He was examined a long time after the transaction took place. But admitting his testimony to be substantially true, if the testimony of Samuel Camp, White, and Hermon Camp of subsequent conversations is also taken as true, (and I do not see how it can be avoided,) it would not change the result.

The testimony of Hormon Camp of the conversation which took place at the time' of the delivery of the deed is important. At this time, it would appear by the testimony of this witness, the defendants assured the complainant that there were six hundred and forty acres of good pine land, which would average forty trees to the acre. He further states that Jones said he had never been on the land, and that he depended on the statement of the defendants.

There can be no doubt that the lands turned out to be very different from such lands as the complainant would naturally have been led to expect from these representations. The witnesses vary somewhat as to the quantity of pine lands. One of the witnesses states that there maybe in all one hundred and seventy acres of pine, but of a quality inferior to the representations. Another from one hundred and eighty to one hundred and eighty-five, averaging from eighteen to twenty-two trees to the acre. Another witness states the quantity at sixty acres of good pine. The other witness, Lyon, says there may be one hundred acres of pretty fair pine land, averaging about twenty trees to the acre.

It would seem that but about one-fourth of the land has pine timber upon it, and upon this not much more than half the quantity which the complainant would have been led to expect from the representations made ; and the complainant was a stranger, who had not seen the lands, and who relied upon the representations'of the defendants, Whether these representations wore made knowing that they were untrue, or were made without knowing, whether they were true or false, the' effect upon the complainant is the same, and the consequence which must follow, must be the same.

The complainant as appears from the case, trusted to them and %vas misled. Some other points were made in the case, but as their consideration cannot vary the result, it is not necessary further to refer to them.

The only doubt I have had in the case has resulted from a slight degree of suspicion from the great degree of confidence, which seems to have been reposed in the defendants by the complainant, that lie may have seemed to rely on these representations, with a view to a resort to this mode of redress; but there is not sufficient shown in the case to authorize this conclusion, and I think it is not so ; and there is no alternative left to the court but to declare the contract rescinded, and to decree a re-delivery of the remaining portion of the goods to the complainant, and award the rc-payment to him of the value of the goods which have been sold by the defendants, and to decree that until this payment shall be made, he shall retain his lien upon the lands as a security ,for the' amount due him for the goods which have been sold.

Decree accordingly.

Note. An appeal was taken in this case to the Supreme Court.