Kreamer v. Smith

Opinion by Mr. Justice Mitchell, The defendant, E. H. Smith, bought with ample opportunity to investigate the condition of the goods, and to ascertain their value. In making the inventory on which the purchase price was based lie had the assistance of an expert in the business, selected by himself, and acting in his intei’est. Prima facie,therefore, it was a case for the application of the ordinary rule of caveat emptor. Nevertheless it may be conceded that if he had subordinated his own judgment to that of his vendor, and the latter put himself in a position of confidence, the defendant may show that fraud or imposition was practised upon him. But the evidence under such circumstances ought to be clear. The items of fraud relied upon by defendants are seven in number. The first three are that the cost marks on the jewelry were changed and made higher, and also on certain umbrellas and hats. The sum total of jewelry in the inventory was $8.79, the alleged overcharge in the umbrellas amounted to $1.83 and in the [211] hats to forty-five cents. It was admitted by Smith himself on the stand that the vendor Lutz offered to take back the jewelry and the umbrellas if Smith was dissatisfied. Fourth and fifth, that the cost marks were erased and new ones substituted on a number of suits of clothing, and new tags were put upon some pantaloons. An explanation was given by Lutz of why this was done, on account of a change in the cost mark used in the store, but with explanation or without it, no proof was made by defendants of how much the alleged increase in the cost marks amounted to. Sixth and seventh, that a dozen suits of clothes were found to be odd and not matched, and that a lot of summer goods mostly worthless were brought into the store from Lutz’s garret the evening before the inventory was made. Here again the evidence fails to show that any more was charged for these goods than the agreement called for. On the contrary, Lutz testified without contradiction that the prices for the broken suits were fixed by himself and Gilbert, defendant’s expert, in Smith’s presence, and as to the summer goods Smith himself testified that “ Lutz thought ten per cent reduction would be a fair price for them, and we accepted his offer.” These were all the items of complaint that the ingenious and energetic counsel of defendants could succeed in putting together. The purchase price of the whole stock in the store was $2,200. Smith went into possession and made sales which he testified amounted (apparently up to the time of trial) to $1,300, and that “ according to Mr. Lutz there is about eleven hundred dollars there yet, but according to Mr. Kronenberg and Heffelfinger ” (experts who had made a subsequent inventory for defendants), “ about three hundred dollars.” This would seem to indicate that on a sale of about one half of the inventory there had been a profit of 8200, or even allowing for some replenishing of stock rather vaguely testified to, that at least there had been no loss. In view of this testimony, of the insignificant amount of the alleged alterations in cost marks, the failure to show any loss on the specific goods complained of, and the general circumstances of the sale, the learned judge below at the end of the trial reached the conclusion that a finding of fraud or deceit could not be sustained, and accordingly directed a verdict for the plaintiffs. We have not been convinced that he was wrong in so doing. The defendant may have made an [212] improvident bargain in buying a business with which he had no practical acquaintance, but he had not shown that he was defrauded. Judgment affirmed.