Westman v. Brumm

Clark, J. Plaintiffs, husband and wife, 81 and 77 years old respectively, born in Sweden, in this country nearly 43 years, of very limited knowledge and experience respecting business of the character here attempted by them, owning 26 shares of capital stock of Consumers Power Company valued at $2,600, exchanged it, at the solicitation of defendant, a stock salesman, for 55 shares of capital stock of Foulds Company, and paid to boot $95 in cash. Plaintiffs accepted four dividend checks from the Foulds Company. Claiming to have been defrauded in the exchange, they brought this suit. Trial was without a jury. The court filed findings and gave judgment to plaintiffs for $1,200. Defendant brings error. It is urged that plaintiffs pleaded rescission and failed to prove it, that there is no evidence of restoration of the certificates of stock received by *389 plaintiffs, nor of an offer to restore, necessary to maintenance of an action at law on the theory of rescission, and that the court therefore erred in his finding and in awarding judgment. The declaration is on the theory of rescission. The trial throughout is on the theory of affirmance of the transaction and recovery of damages for the fraud. The evidence of fraud would he practically the same on either theory, but there is marked difference respecting damages. In rescission a plaintiff may recover back what he has paid or parted with. In affirmance the measure of plaintiff’s damage is the difference in value of the property he bought as it was represented and as it was. Here the evidence relative to damages on both sides is on the theory of an affirmance, the theory of the trial. The evidence shows no rescission. At the conclusion of proofs the , court asked plaintiffs ’ counsel what he claimed as to measure of damages, and he stated his claim on the theory of affirmance. Defendant’s objection was not made during the trial and not raised until after the court had filed his findings, when it was proposed as an amendment. It came too late. Parties will be held in this court to the theory upon which the cause was tried without objection in the circuit court. 3 C. J. p. 723. It may be noted that no point is made that filing the declaration constituted an election of remedies. Donovan v. Curts, 245 Mich. 348. Defendant contends that plaintiffs’ accepting dividends on the Poulds Company stock after learning of the fraud is a waiver of right of action. This was a fully executed contract or transaction. Plaintiffs might retain the dividends in any event (Stowe v. Mather, 247 Mich. 329), and accepting them was not here a waiver. 27 C. J. p. 25. *390 Lastly, it is contended that the finding of fraud is against the clear weight of the evidence. A claimed misrepresentation is that of value of the Foulds Company stock. Plaintiffs had testimony of qualified disinterested witnesses that the value was not as represented, that the disparity was at least as great as that found by the trial court. Defendant had testimony of qualified witnesses to the contrary. "We cannot sustain the contention. Defendant professed expert knowledge of the value. Plaintiffs knew nothing about it. They relied on the representation, which, proving false, sustains the finding and judgment. O’Neill v. Kunkle, 244 Mich. 653, and cases cited. Judgment affirmed. North, C. J., and Fead, Wiest, McDonald, Potter, and Sharpe, JJ., concurred. The late Justice Fellows took no part in this decision.