Davis v. Upton
| Citation | 250 S.C. 288,157 S.E.2d 567 |
| Decision Date | 25 October 1967 |
| Docket Number | No. 18717,18717 |
| Court | South Carolina Supreme Court |
| Parties | William DAVIS, Appellant, v. Scott UPTON, Individually, Suburban Builders, Inc. and United MortgageeServicing Corporation, of which United Mortgagee Servicing Corporation isRespondent. |
Luther M. Lee, Dallas D. Ball, Columbia, for appellant.
J. Lewis Cromer, Herbert W. Louthian, Columbia, for respondent.
This action was commenced by William Davis, the appellant herein, against United Mortgagee Servicing Corporation, the respondent herein, and Scott Upton, individually, and Suburban Builders, Inc., to recover actual and punitive damages on account of alleged fraud and deceit. The appellant alleged in his complaint that Upton, while acting individually and as agent for Suburban Builders, Inc., and one Wilson acting as agent for the respondent, told the appellant that upon his deposit of $900.00 Suburban Builders, Inc. would construct a house for him according to certain plans and specifications, and that financing would be arranged by the respondent; and in the event the house could not be built or the financing arranged the deposit would be returned, and this representation was false. The appellant alleges that he did not know the falsity of the statements and relied thereon, paying over the $900.00 as a deposit to Wilson, who, in turn, paid it over to Upton and received a receipt therefor signed by Upton and Suburban Builders, Inc.
The respondent, by way of answer, denied all of the allegations of the complaint charging it with fraud and deceit. The respondent further alleged that the $900.00 paid by the appellant to Upton was a down payment on the contract price of a house to be constructed for him by Upton, and the only connection of this respondent to either the appellant or Upton was to process an application for a loan to finance the construction of said house.
It is admitted that Upton and Suburban Builders, Inc. did not answer the complaint and a default judgment was taken against them. Thereafter, the issues raised by the pleadings as against the respondent were tried before The Honorable John A. Mason, County Judge, and a jury. Upon the conclusion of the appellant's evidence which consisted solely of his own testimony and exhibits, the respondent moved for a nonsuit on the ground that there was no evidence of fraud and deceit upon which the jury could base a verdict in favor of the appellant against the respondent. The trial judge granted the motion and the appeal here is from such order of nonsuit.
A dismissal or nonsuit is proper when a plaintiff's evidence does not warrant a verdict in his favor. Smalley v. Southern Ry. Co., 57 S.C. 243, 35 S.E. 489. The appellant having charged the respondent with fraud and deceit as the basis of his cause of action must establish such by evidence that is clear, cogent and convincing and the failure to prove any one of the elements of fraud and deceit is fatal to recovery. In order to recover in an action for fraud and deceit the appellant was required to prove that the agent of the respondent made a material representation; that it was false; that when it was made the agent knew it was false; that it was made with the intention that it should be acted upon by the appellant; that the appellant was ignorant of its falsity; that he relied on its truth; that he had a right to rely thereon; and that he thereby suffered injury. Jones v. Cooper, 234 S.C. 477, 109 S.E.2d 5; Parks v. Morris Homes Corporation, 245 S.C. 461, 141 S.E.2d 129. The general rule is that fraud must relate to a present or pre-existing fact, and cannot ordinarily be predicated on unfulfilled promises or statements as to future events. However, where one promises to do a certain thing, having at the time no intention of keeping his agreement, it is a fraudulent misrepresentation of a fact, and actionable as such. Thomas & Howard Co. v. Fowler, 225 S.C. 354, 82 S.E.2d 454. Cook v. Metropolitan Life Ins. Co., 186 S.C. 77, 194 S.E. 636.
The appellant testified that his home burned and it became necessary for him to rebuild or acquire another house. To that end he contacted a realtor and he recommended that he consult with one Johnny Wilson, agent of the respondent, with regard to the construction of a new house. The appellant went to see Wilson, carrying with him a set of house plans and was told...
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...Industries Research Foundation v. National Cash Register Co., 406 F.2d 546, 548 (9th Cir.1969) (Washington law); Davis v. Upton, 250 S.C. 288, 290-91, 157 S.E.2d 567 (1967); see generally 37 Am.Jur.2d, Fraud and Deceit § 480; we are aware of only one court that has addressed specifically wh......
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...made by a party who never intended to fulfill the promise and only made it to induce the performance of another party. Davis v. Upton, 250 S.C. 288, 157 S.E.2d 567 (1967); Winburn v. Insurance Co. of North America, 287 S.C. 435, 339 S.E.2d 142 While acting as personal representatives of Mrs......
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Beneficial Fin. I, Inc. v. Windham
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