Eibel v. von Fell

• Decision Date: 27 February 1899
• Citation: 42 A. 754,63 N.J.L. 3
• Parties: EIBEL et al. v. VON FELL et al.
• Court: New Jersey Supreme Court

42 A. 754

63 N.J.L. 3

EIBEL et al.

v. VON FELL et al.

Supreme Court of New Jersey.

Feb. 27, 1899.

(Syllabus by the Court.)

Action by Mary Eibel and others against Augusta Von Fell and others. Demurrer to declaration overruled.

Argued November term, 1898, before MAGIE, C. J., and DIXON and GARRISON, JJ.

Warren Dixon, for plaintiffs.

George J. McEwan, for defendants.

MAGIE, C. J. This demurrer is interposed to a declaration which contains two counts. If either count is free from objection, the demurrer must be overruled. Perdicaris v. Bridge Co., 29 N. J. Law, 367; Beavers v. Trimmer, 25 N. J. Law, 97; Belton v. Gibbon. 12 N. J. Law, 76. My examination of the first count of the declaration has led me to the conclusion that it exhibits a good cause of action,—not, as claimed in plaintiffs' brief, for a false warranty, but for deceit it is settled in this court that, to support an action for deceit, there must appear a false representation, made with a fraudulent intent, producing injury to the plaintiff. If it appear that the falsity of the representation was known to defendant, the fraudulent intent is deemed to be conclusively established. If, however, the representation made by defendant, though false, was not known by him to be false, the action can only be supported by proof that it was made malo animo, and with intent to deceive. Cowley v. Smyth, 46 N. J. Law, 380. It follows that a good cause of action for deceit may be set out without a charge that the representation alleged to be false was known by defendant to be so, provided it is charged that the false representation was fraudulently made. As was said in the leading case of Pasley v. Freeman, 3 Term R. 51, in respect to pleading in this action, "fraudulenter without sciens, or sciens without fraudulenter," will be sufficient. Tested by these rules, the first count of the declaration manifestly discloses a good cause of action. It charges that the plaintiffs, at the request of the defendants, bargained for the purchase from defendants of a lot, with a house upon it, for a certain price, and that the defendants, by falsely and fraudulently representing that the house was new, sold the premises to plaintiffs for the proposed price, which was paid. Then follows an allegation that the house was in fact old, and its timbers rotten, whereby the plaintiffs were injured. Proof that the representation charged was made; that it was false in fact; that defendants, although ignorant of its...