Guild v. More

• Decision Date: 29 November 1915
• Parties: GUILD v. MORE.
• Court: North Dakota Supreme Court

32 N.D. 432

155 N.W. 44

GUILD

v.MORE.

Supreme Court of North Dakota.

Oct. 9, 1915.

Rehearing Denied Nov. 29, 1915.

Syllabus by the Court.

A complaint assailed for the first time at the trial by an objection to the introduction of evidence on the ground that it fails to state facts sufficient to constitute a cause of action, will be liberally construed.

In an action to recover general damages for fraud and deceit, it is not necessary to allege the measure of damages.

One who willfully deceives another with intent to induce him to alter his position to his injury is liable, in an action of deceit, for any damage which the injured party suffers thereby.

To maintain an action for deceit it is not necessary that the false representations should have been an inducement to a contract afterwards consummated; but, if the essential elements of actionable fraud are present, such action will lie for any false representation relied on by the plaintiff, whereby he was induced, to his injury, to part with property or surrender some legal right.

The defrauded party, on discovery of the fraud, may affirm the transaction, keep whatever property or advantage he has derived under it, and recover in an action of deceit the damages caused by the fraud; or, he may within a reasonable time after discovery of the fraud, repudiate the contract, and, tendering back what he has received under it, recover what he has parted with, or its value.

The defrauded party by retaining the property, and bringing an action of deceit for the damages sustained by reason of the fraud practiced upon him, thereby affirms the transaction.

The transaction must be affirmed or rescinded as a whole. And in an action wherein plaintiff by fraudulent representations was first induced to sign an executory contract for the purchase of certain property, and subsequently, by further fraudulent representations without knowledge of the fraud, induced to make further and final payment, he will not be restricted to proof of false representations preceding the date of the executory contract, but will be permitted to show representations made up to the time he made final payment and received the property purchased.

A written instrument has no valid existence until delivered in accordance with the intention of the parties.

Wherever the intent or guilty knowledge of a party is a material ingredient in the case, any facts logically tending to establish such intent or knowledge are properly received in evidence.

Where one party introduces in evidence one or more of a series of letters written by the party sought be charged, the latter may offer the remainder of the correspondence relating to the transaction in question.

When a letter so offered refers to another letter inclosed therewith, the letter so inclosed and referred to, is also admissible, provided the reference is such as to make it apparent that the latter is necessary to a full understanding of the former.

No error can be predicated upon the admission of competent evidence bearing directly on an issue of fact presented by the pleadings.

Requests for instructions do not constitute part of the judgment roll, and hence cannot be reviewed on appeal unless incorporated in the statement of case.

A preponderance of the evidence, after making due allowance for the presumption in favor of honesty and good faith, is sufficient in ordinary cases to establish a charge of fraud. And instructions to the jury based upon this theory are held to be not erroneous in the case at bar.

The term “burden of proof” means the obligation imposed upon a party, who alleges a fact or set of facts, to establish the existence thereof by a weight of evidence legally sufficient, first to destroy the equilibrium and, second, to overbalance any weight of evidence produced by the other party. The burden of proof is determined by the pleadings, and never shifts, but must be carried by the responsible party throughout the case (citing Words and Phrases, First and Second Series, Burden of Proof).

The phrase “burden of evidence” means that logical necessity which rests on a party at any particular time during a trial to create a prima facie case in his own favor, or to overthrow one when created against him. The burden of evidence has no necessary connection with the pleadings, but is determined by the progress of the trial, and shifts to one party when the other party has produced sufficient evidence to be entitled as a matter of law to a ruling in his favor (citing Words and Phrases, First and Second Series, Burden of Evidence).

In an action of deceit, wherein it is asserted as an affirmative defense that plaintiff, before the consummation of the fraud made an examination of the books of the concern, and hence knew or should have known the real state of affairs, and that therefore, even though it be true that plaintiff was first induced by material misrepresentations to contract, still plaintiff did not rely thereon, but relied on his own investigation, an instruction upon such defense that the burden of proving that the representations were not relied on, is on the person who has been proved guilty of material misrepresentation, is not erroneous as placing the burden of proof upon the defendant to disprove plaintiff's reliance upon the false representations; the court having also charged that plaintiff was required to establish, by a preponderance of the evidence, all the material allegations in his complaint, including his reliance upon the false representations.

Ordinarily the question of materiality of a false representation is one of fact to be determined by the jury.

In an action of deceit it is not necessary for plaintiff to prove all the fraudulent misrepresentations alleged; it is sufficient if he proves one or more of them, and that those so proven were relied upon to his damage.

When the merits of an action have been determined by special answers to questions submitted, the verdict will not be held defective by reason of the fact that the jury made findings on immaterial issues framed by the pleadings, where such immaterial findings cannot in any way qualify, limit, or affect the answers upon which the right of either of the parties to a judgment in his favor is made clear.

An objection that a complaint contains irrelevant and immaterial allegations, cannot be raised for the first time after trial and verdict.

Insufficiency of the evidence to sustain the findings of a jury cannot be raised for the first time on the argument in the appellate court.

A party predicating error upon improper argument to the jury has the burden of showing affirmatively, by the record presented to the appellate court, the facts constituting such error.

Amount of damages as computed by trial court held correct.

Appeal from District Court, Cass County; Pollock, Judge.

Action by L. T. Guild against A. Y. More. From judgment for plaintiff, defendant appeals. Affirmed.

See, also, 30 N. D. 248, 152 N. W. 275.

Burke, J., dissenting.

A. W. Fowler and Pollock & Pollock, all of Fargo, for appellant. Watson & Young, E. T. Conmy, and Horace C. Young, all of Fargo, for respondent.

CHRISTIANSON, J.

This is an action to recover damages for the fraud and deceit of the defendant, whereby it is alleged that plaintiff was induced to purchase from the defendant an interest in a certain newspaper plant located in the city of Fargo in this state, known as the Courier-News. Upon demand of defendant's counsel, the case was submitted to the jury for a special verdict. Judgment was ordered and entered against defendant upon such special verdict, and this appeal is from the judgment so entered.

The complaint at length and with great particularity sets forth the facts upon which plaintiff relies for a recovery, and charges:

“That the defendant More, for the purpose of inducing the plaintiff to purchase an interest in said newspaper plant, and to pay over to him the cash or securities hereinbefore referred to, or pay to him their equivalent in money, to wit, the sum of $20,000 and to induce plaintiff to resign his pastorate and sever his connection with his church, and to remove his family from Toledo, Ohio, and establish himself in the city of Fargo permanently, and to induce the plaintiff to take upon himself the editorial management and the operation of said newspaper plant, during the months of July, August, and September, 1913, falsely and fraudulently represented and stated to the plaintiff: (1) That the Courier-News was the leading newspaper in the state; (2) that the people of the state in their politics were almost solidly Progressive; (3) that the new Progressive party in its membership stood second in the state and ran second in the 1912 elections; (4) that the new Progressive party was organized, and was solidly behind the paper and would get behind the plaintiff and would give him united support; (5) that the paper was popular throughout the state; (6) was in good repute and was of wide influence; (7) that it paid its bills and had a good financial standing; (8) that it was sound financially and was upon a paying basis, and was returning a profit month by month; (9) that it had a subscription list of at least 10,000; (10) that the newspaper and plant, including franchise, subscription lists, and accounts were of the value of $73,000, to wit:

+-----------------------------------------------------------------------------+
                ¦For the press, linotypes, type, stereotyping outfit and entire   ¦$30,000.00 ¦
                ¦mechanical equipment                                             ¦           ¦
                +-----------------------------------------------------------------+-----------¦
                ¦For the office equipment, furniture, etc., used in business and  ¦3,000.00   ¦
                ¦editorial departments                                            ¦           ¦
                +-----------------------------------------------------------------+-----------¦
                ¦For Associated Press franchise

...