Corley Co. Inc v. Griggs Et Ux

• Decision Date: 16 September 1926
• Docket Number: (No. 13.)
• Citation: 134 S.E. 406
• Parties: CORLEY CO., Inc. v. GRIGGS et ux.
• Court: North Carolina Supreme Court

134 S.E. 406

(192 N.C. 171)

CORLEY CO., Inc.

v.GRIGGS et ux.

(No. 13.)

Supreme Court of North Carolina.

Sept. 16, 1926.

[Ed. Note.—For other definitions, see Words ami Phrases, First and Second Series, Deceit.]

Appeal from Superior Court, Currituck County; Grady, Judge.

Action by the Corley Company, Inc., against A. S. Griggs and wife. Judgment for defendants, and plaintiff appeals. New trial.

This was an action brought by plaintiff against the defendants for the recovery of $450, with interest from September 1, 1922, the price of a Schubert piano, sold and delivered to the defendants. The alleged contract of sale was admitted by defendants, but they set up the defense:

"That the defendants were induced to enter into the said contract by the false and fraudulent misrepresentations of the said plaintiff, in that it was represented to them by plaintiff's agent, Butler, that the said piano which the said defendants were buying was a new one, was up to date in every respect; that it would play satisfactorily; that it would give the defendants satisfaction in every respect, when in fact the said piano was not a new one, but was a secondhand, or used, piano; that it was defective in workmanship and in the mechanical parts, all of which was well known to the plaintiff's agent when he made these representations to the defendants, and the said representations were made with the knowledge of their falsity and with the intention to deceive, calculated to deceive, and did deceive these defendants to their injury, and by reason of the same the defendants were caused to enter into the said contract." That the representations were false. That, immediately upon the discovery of the false representations made by plaintiff's agent to them, they notified plaintiff to remove the piano.

In reply, plaintiff denied that the defendants were induced to enter into the contract by any false or fraudulent representation of plaintiff or its agent. It denied that the piano was a used or secondhand one. It denied all the other allegations as to defective workmanship, etc., denied that any wrong had been committed in the sale, and alleged that defendants had used and operated the piano for more than two years.

The issues submitted to the jury, and their answers thereto, were as follows:

"(1) Was the execution of the contract in question procured by false and fraudulent representations as alleged in the answer? Answer: Yes.

"(2) In what amount, if anything, are defendants indebted to the plaintiffs? Answer: ——."

The evidence on the trial bore out the contentions of the respective parties.

The material assignment of error will be considered in the opinion.

McMullan & Le Roy, of Elizabeth City, for appellant.

Aydlett & Simpson, of Elizabeth City, for appellees.

CLARKSON, J. The defendants set up actionable fraud or deceit to rescind the alleged contract. The only serious contention or assignment of error of plaintiff (4) is that the court below in its charge omits any reference to scienter.

The charge complained of was as follows:

"It is necessary for them to show to you by the greater weight of the evidence before you can answer the issue in their favor, first, that such representations were made to them by Mr. Butler, second, that these representations were false, third, that they relied upon these representations as being true, and fourth, relying upon them to be true, they purchased the instrument and executed the contract."

In Whitehurst v. Ins. Co., 149 N. C. 276, 62 S. E. 1068, the court says:

"And it is not always required, for the establishment of actionable fraud, that a false representation should be knowingly made. It is well recognized with us that, under certain conditions and circumstances, if a party to a bargain avers the existence of a material fact recklessly, or affirms its existence positively, when he is consciously ignorant whether it be true or false, he may be held responsible for a falsehood; and this doctrine is especially applicable when the parties to a bargain are not upon equal terms with reference to the representation, the one, for instance, being under a duty to investigate, and in a position to know the truth, and the other relying and having reasonable ground to rely upon the statements as importing verity. Modlin v. R. R, 145 N. C. 218 158 S. E. 10751; Ramsey v. Wallace, 100 N. C. 75 ; Cooper v. Schlesinger, 111 U. S. 148 [4 S. Ct. 360, 28 L. Ed. 382]; Pollock on Torts, 7 Ed. 276; Smith on the Law of Fraud, sec. 3; Kerr on Fraud and Mistake. 68."

See Unitype Co. v. Ashcraft, 155 N. C. 63, 71 S. E. 61; Machine Co. v. McKay, 161 N. C. 584, 77 S. E. 848; Simpson v. Tob. Growers, 190 N. C. 603, 130 S. E. 507; Dunbar v. Tob. Growers, 190 N. C. 608, 130 S. E. 505; McNair v. Finance Co., 191 N. C. 710, 133 S. E. 85.

In Pollock on the Law of Torts (12th Ed. 1...