People v. Johnson

183 N.W.2d 813, 28 Mich. App. 10, 1970 Mich. App. LEXIS 1120
Michigan Court of Appeals·Decided November 27, 1970·No. Docket 5,578·Published·Cited by 6 cases

Opinions

Holbrook, J.

On February 7, 1968, Roland Johnson was found guilty by the Honorable Geraldine Bledsoe Ford of Recorder’s Court for the City of Detroit and on March 21, 1968, he was sentenced to five years’ probation for the felony of obtaining more than $100 under false pretenses following a trial held October 11, 12, and 13, 1967. Defendant has taken this appeal.

The pertinent facts are stated as follows:

In June 1966, Benjamin and Sarah Latta decided to attempt to sell their house at 17822 Brush Street in Detroit for the unpaid balance of approximately $8,500 on their first mortgage and the unpaid balances of three home improvement loans, which in July 1966, had gross payoffs totaling approximately $9,950, net payoffs totaling approximately $7,200. Sarah Latta’s daughter saw an advertisement in the 1965 Detroit Yellow Pages telephone directory stating:

“Roland Johnson Realty & Investment Co. We pay cash for homes”

with a picture of Roland Johnson and telephoned that number, whereupon Sarah Latta asked Roland Johnson (who was not then licensed as a real estate broker or salesman) if he was a real estate agent, to which she received an affirmative reply, and asked him to come out to her house. Upon his [13]*13arrival, Sarah Latta advised Roland Johnson that she wished to sell the house in return for the assumption of the first mortgage of $8,500 and the immediate payment of the home improvement loans which she told him were approximately $9,000; then she gave him the home improvement loan payment books which he then and there figured up without using the schedule or chart necessary to compute mathematically the net payoffs, was told by him that he was putting the property up or listing it for sale, and signed papers to take the loans out of her and her husband’s names so that Roland Johnson could sell the property. The Lattas did not read or understand these papers. A sign was put in front of the house stating:

“For Sale. Roland Johnson Real Estate and Investment Company”

after which three groups of people came to see the house.

On or about July 3, 1966, George Kattouah, who was then licensed and employed as a real estate salesman, was a registered land surveyor, lived and worked within one-half mile of the Brush Street property, and had nine years’ experience in purchasing approximately 15 multiple-family dwellings for his own investment and income purposes, saw that sign on the Brush Street property, telephoned the number advertised on the sign, and arranged a meeting with Roland Johnson at the property when the Lattas and their children were in the house. The Lattas were known to and believed by George Kattouah and his wife Mary to be the owners of the Brush Street property inasmuch as the Lattas and Kattouahs had had a serious disagreement as to sharing the cost of erecting a fence between the 'Lattas’ home and adjacent property [14]*14owned by the Kattouahs. George Kattouah testified that he thought or had the impression that the Lattas were selling the house and that Mr. Johnson was their broker, but didn’t know for sure, and that Roland Johnson said the Lattas wanted $2,000 for their equity. George Kattouah then went to the office of Roland Johnson Real Estate & Investment Co., left a $100 deposit with defendant and made to bim an offer to pay $1,500 in cash and to assume the mortgage for $8,500 and existing home improvement loans represented by defendant to be in the amount of approximately $5,500. George Kattouah further testified that while he knew it was possible to call lending institutions to ascertain net payoffs he did not do so with respect to any of these loans, that he accepted Roland Johnson’s estimate of $5,500. A few days thereafter Mr. Kattouah called Mr. Johnson who stated, “Okay. Your offer has been accepted, so bring your money and come in and let’s close the deal.” The original purchase agreement which Mr. Kattouah had received on making the offer was taken by Roland Johnson at the time of closing the transaction. At the closing, George Kattouah and his wife Mary signed a written notarized agreement to pay the outstanding three home improvement loans which were specifically described therein, and stated to be in the approximate amount of $5,500. Mr. Kattouah endorsed to Roland Johnson Real Estate & Investment Co. a check for $1,400 belonging to George Kattouah’s cousin for whom he was purchasing the house. Roland Johnson then gave them the home improvement loan payment books and George Kattouah thereafter received a warranty deed for the Brush Street property.

In July 1967, Roland Johnson told Sarah Latta that the house was sold, she understanding that [15]*15she and her husband no longer owned the house and that the home improvement loans had been taken out of their names. At trial Benjamin Latta and Sarah Latta identified their signatures on a purchase agreement between Roland Johnson Real Estate & Investment Co. and Benjamin and Sarah Latta and a warranty deed from Benjamin and Sarah Latta to Roland Johnson Real Estate & Investment Co. covering the subject premises.

Mr. Kattouah testified that if he had known at the inception of the agreement to purchase that the home improvement loans balance was more than $9,900 he would not have purchased the property for his cousin. George Kattouah testified that he relied upon the representations of defendant as to the amount of the three home improvement loans to his detriment.

Defendant claims that Mr. Kattouah did not rely upon defendant’s representations to his detriment, and that “detriment” must be defined as economic loss, that complainant Kattouah only assumed the payment of the three home improvement loans to the amount of $5,500. Further, that the home improvement loans were not liens upon the property.

There is no question but what there is ample evidence for the determiner of the facts to conclude that a false representation was made by defendant knowingly with intent to defraud complainant by stating that the three home improvement loans were in a total amount of $5,500 when, in fact, they were in a total sum of over $9,000. The agreement to pay these loans was definite and specifically mentioned the three loan account numbers at the banks. The agreement was not a limited agreement to pay up to $5,500, but an agreement to pay the three home improvement loans specified.

[16]*16The essential elements of the offense under the statute are (1) an intent to defraud; (2) the use of false pretenses or representations regarding an existing fact; and (3) the accomplishment of the intended fraud hy means of such false pretenses. 3 Gillespie, Michigan Criminal Law and Procedure (2d ed), §1432, p 1821; People v. Wakely (1886), 62 Mich 297; and People v. Segal (1914), 180 Mich 316.

Defendant cites People v. Larco (1951), 331 Mich 420 in support of his position that the complaining witness did not rely upon the representations of the defendant to his detriment, i.e., that he suffered a loss. At p 429 it is stated in part:

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People v. Johnson, 183 N.W.2d 813, 28 Mich. App. 10, 1970 Mich. App. LEXIS 1120 (Mich. Ct. App. 1970).

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