Seibold v. Berdine

NOURSE, J.

This is an action for damages for fraud and deceit arising out of the sale of a bakery. The sale was made on the fourteenth day of January, 1920, at which time $7,598.81 was paid to the defendants as part of the total purchase price of $12,598.81, the balance of which ($5,000) was agreed to be paid on or before January 28th of the same year. Plaintiff entered into possession on the fifteenth day of January, and on the 29th of January paid to the defendants the sum of $4,677, which at that time the parties agreed was the proper amount to be paid after making certain deductions following their inventory of the stock in trade. Plaintiff elected to stand upon his contract and to sue for the fraud. Evidence was offered that the market value of the property at the time of the sale was $7,500, and thereupon the court rendered judgment in favor of the plaintiff in the sum of $5,098.81.

The plaintiff relied upon four specifications of fraud consisting of representations made by the defendant Berdine to the plaintiff as inducements for the sale: (1) That the business had 'been yielding an average net profit of $200 or more per week; (2) that there was on hand as part of the inventory of said business 120 sacks or 60 barrels of “Minodak flour”; (3) that the cost of certain fruits inventoried at the time of the sale wras 147 cases at $7.25 per case; and (4) that the actual and true cost of equipping and installing said business, plus cost of fixtures, stock in trade and baking materials, was the sum of $12,598.81.

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The trial court found that all the allegations of the complaint containing the specifications of fraudulent representations were true, that these representations were false, and that there was no waiver on the part of the plaintiff.

The judgment which followed is attacked upon the ground that the evidence does not support these findings, and also that whatever fraud was committed and whatever misrepresentations were made were waived by the respondent before he made his final payment upon the contract.

Upon the first specification of fraud there is evidence in the record to support the finding that at the particular time in question the average weekly net profit of the business did not amount to $200. There was evidence to show that respondent took possession of the premises at a particularly unfavorable period of the year and that both the receipts and profits were higher at different periods of the year, a fact which was made known to the respondent before he consummated the purchase. However, there is evidence to support the finding of the trial court that these representations made by the appellants were untrue and that the respondent relied upon them to his injury. The same may be said as to the finding relating to the representations covering the number of sacks of flour which were included in the sale, although it is evident that these representations resulted from mistake on the part of appellants rather than fraud and that they had no possible connection as an inducement for the sale, the mistake having been discovered long before the sale was consummated and having been adjusted by the parties before the final payment was made.