Del Vecchio v. Savelli

KERRIGAN, J.

This action was brought to recover damages for alleged false and fraudulent representations made by defendant to plaintiff, with respect to two barber-shops in San Francisco, in the course of negotiations resulting in a sale of an interest therein by defendant to plaintiff.

The cause was tried before a jury, which returned a verdict in favor of the plaintiff, and assessed the damages at the sum of $450. Judgment was entered accordingly, and this appeal is taken by defendant within sixty days thereafter.

The facts of the case briefly told are these: The plaintiff who was himself not a barber, and wholly unfamiliar with that business, was sought by defendant, and urged by him to buy a half interest in the two shops, including their furniture and fixtures, goodwill and a lease of property on which one of the shops stood, the defendant representing that the net profits of the shops from the beginning of the business

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down to that time amounted to $100 per week. The plaintiff, relying implicitly upon these representations, on September 18, 1906, agreed to the purchase, and received a transfer of the one-half interest, since which time there has not been realized from the business during any week a profit of more than $40, and many weeks the profit was very much less.

At the conclusion of the plaintiff’s case the defendant made a motion for a nonsuit, which was denied. Appellant claims that this motion should have been granted. It is true that no direct evidence was introduced to show that the profits of the shops prior to the sale of the half interest to plaintiff had not been the sum of $100 per week; but the evidence did ■show that the profits of both shops for the first week thereafter were not $100, but $39, and that for no week during the months that the parties hereto were associated in business did they exceed $40, and for many weeks they were much less. The averment of the complaint as to the profits of the shops was negative in character; but as the plaintiff made it the basis of his suit the burden was upon him to show that it was at least

prima facie

true

(United States