Opinion
Docket No. 116, Calendar No. 36,807.
Submitted October 18, 1932.
Decided January 3, 1933. Rehearing denied March 2, 1933.
Appeal from Wayne; Toms (Robert M.), J. Submitted October 18, 1932. (Docket No. 116, Calendar No. 36,807.) Decided January 3, 1933. Rehearing denied March 2, 1933.
Action by Joseph Fox against John F. Ivory Storage Company, Inc., a Michigan corporation, for fraudulent representations made to induce execution of contract relating to storage of household goods. Verdict and judgment for plaintiff. Defendant appeals. Affirmed.
Berger Berger, for plaintiff.
Pear Beattie ( Donald K. Tyler, of counsel), for defendant.
This suit was brought to recover damages for loss by fire of household goods which the plaintiff had stored in the defendant's warehouse.
The declaration contains three counts. The first Alleges a breach of contract for failure to store the goods in a warehouse of fireproof construction. The second count alleges that the defendant falsely represented the warehouse to be of fireproof construction, and in reliance on that representation, which the plaintiff believed to be true, he entered into the contract of storage. The third count alleges failure to keep the goods in a safe place and to return them to the plaintiff when requested.
The defendant denied liability on the ground that the rights and obligations of the parties were fixed by the warehouse receipt, which was a complete contract for storage and which stipulated that there would be no liability for loss or damage by fire. It also denied any representation or promise other than what appeared in the written contract.
On the trial the usual motions were made in their order for a directed verdict and for judgment notwithstanding the verdict. Both motions were denied. The verdict was for the plaintiff, on which judgment was entered.
The defendant has appealed.
The principal issue related to the alleged representation that the warehouse was of fireproof construction, which the court and counsel treated as a preliminary oral agreement. It was the defendant's contention that testimony of the so-called oral agreement was inadmissible because it added to and varied the written contract. The trial court held that it was not inconsistent with the terms of the written instrument, and for that reason overruled the contention. On such ruling the defendant has assigned error.
The warehouse receipt is a complete contract. It states all of the terms of the bailment. We agree with the defendant that oral testimony tending to vary, add to, or contradict it was inadmissible. But the testimony complained of was not offered for that purpose, and did not have that effect. It was offered to show that plaintiff was induced to enter into the written contract because of the defendant's fraud in falsely representing that the warehouse was of fireproof construction. Believing that it was fireproof, he was willing to consent to all of the terms of the written contract and to take the risk of loss by fire. In the second count of his declaration he alleges the representation and charges:
"That although said representations and promise were false and untrue, plaintiff relied thereon and entered into a contract, and at all times believing that the said defendant's warehouse was of a fireproof construction."
On this theory, the testimony was admissible. The court submitted it to the jury as the only ground on which the defendant could be held liable. That he treated it as a part of the agreement between the parties is of no material consequence. The important fact is that the jury found the representation had been made as the plaintiff in his declaration had alleged, and thus determined the defendant's liability.
On the question of value, error is assigned on the ruling of the court in admitting testimony as to the purchase price of the goods and their condition when stored.
The warehouse receipt contained an itemized list of the goods, on which the defendant noted their condition as to being marred, chipped, scratched, or stained. Evidence of value was from witnesses engaged in the business of buying and selling secondhand furniture. They could not examine goods that had been consumed by fire. It was necessary that they should know their condition in order to form an opinion as to value. It was necessary that they should know to what extent they were marred, chipped, or scratched. The notation on the warehouse receipt, acquiesced in by the plaintiff, was conclusive only of the fact that some articles were marred, etc., but did not bar the plaintiff from showing their general condition.
As to evidence of the purchase price to show value, the court instructed the jury:
"I charge you that in the case of a number of these articles there has been no testimony, except as to their purchase price, and that alone is not sufficient for you to determine the value at the time of the destruction of the articles there. Therefore, unless, in addition to the purchase price, there is some other proof as to value, when these goods were destroyed, you may not find what the value of that article is; in other words, that leaves you in a situation where there is no competent and convincing proof of the value of the article."
We find no error in the admission of evidence as to value.
We have considered all other assignments urged as cause for appeal, but are not convinced that they have sufficient merit to require discussion.
The judgment is affirmed, with costs to the plaintiff.
CLARK, POTTER, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred.