Sioux Banking Co. v. Kendall

• Decision Date: 23 February 1895
• Citation: 6 S.D. 543,62 N.W. 377
• Parties: SIOUX BANKING CO. Plaintiff and appellant, v. KENDALL et al. Defendants and respondents.
• Court: South Dakota Supreme Court

6 S.D. 543

62 N.W. 377

SIOUX BANKING CO. Plaintiff and appellant, v. KENDALL et al.

Defendants and respondents.

South Dakota Supreme Court

Appeal from Circuit Court, Miner County, SD

Hon. D. Haney, Judge

Affirmed

D. C. Thomas, W. B. Thomas

Attorneys for appellants.

C. A. Crissey, L. J. Martin, A. E. Chamberlain

Attorneys for respondents.

Opinion filed Feb. 23, 1895

KELLAM, J.

This is an appeal from a judgment and an order denying a new trial. The case was tried to a jury, and a verdict for defendants directed by the court. Among the erirors assigned is the insufficiency of the evidence to justify the verdict. It is probable, as urged by respondents, that this assignment is not sufficiently supplemented with the specification of the particulars in which the evidence is claimed to be insufficient to justify this court in examining the question as one of fact; but, the trial court having disposed of the case as one of law, the question here is not whether the verdict is sustainable as a conclusion of fact, but whether the court was right in treating the case as presenting no question of fact, and so deciding it as a question of law. Mercantile Co. v. Faris (SD) 60 NW 403. The direction by the court of a verdict for defendants, if error at all,">

In Van de Sande v. Hall, 13 How. Pr. 458, an answer was held bad because it omitted “to allege that the defendant was misled by the representation, or that his belief in the truth of the representation induced him to enter into the lease.” In Going v. White, 33 Ind. 125, it said that, to make fraudulent representations actionable, the complaint must contain an averment that the plaintiff relied upon the representations. The want of such averment cannot be supplied by a recital of evidence which might justify a presumption that the representations were relied upon, unless such evidence be conclusive of the fact. In this respect we think there was a fatal defect in plaintiff’s proof. It was an essential element in plaintiff’s case, without establishing which it could not recover. The evidence offered would not have justified the jury in finding that the plaintiff was induced to part with its property by the representation of Benn. The trial court was therefore right in directing a verdict for defendants.

The judgment is affirmed.

All the judges concur.