F.B. Connelly Co. v. Schleuter Bros.
| Decision Date | 13 November 1923 |
| Docket Number | 5232. |
| Citation | 220 P. 103,69 Mont. 65 |
| Parties | F. B. CONNELLY CO. v. SCHLEUTER BROS. |
| Court | Montana Supreme Court |
Appeal from District Court, Rosebud County; Geo. A. Horkan, Judge.
Action by the F. B. Connelly Company against Schleuter Bros., a copartnership consisting of Henry Schleuter and Otto Schleuter. Judgment for defendants, and plaintiff appeals. Affirmed.
F. F Haynes, of Forsyth, and Nichols & Wilson, of Billings, for appellant.
Campbell & Carolan, of Forsyth, for respondents.
About August 19, 1920, the plaintiff sold and delivered to the defendants a 25-ton portable screening plant, complete, for the agreed price of $2,199.53. This action was brought to recover the purchase price, and the complaint follows the form usually employed in such cases. The answer admits all the material allegations of the complaint, and then sets forth four affirmative defenses. Issues were joined by reply and the cause tried, resulting in a verdict for the defendants. From the judgment entered thereon, plaintiff appealed.
1. There is not any merit in the contention made that the court erred in permitting defendants to open and close the case. The defendants had the affirmative of every issue raised by the pleadings, and the burden rested upon them to produce their evidence first. Sections 9349 and 10616, Rev. Codes 1921. Their general denial of the legal conclusion contained in the complaint "that the said purchase price of $2,199.53 is now long past due and owing from defendants to the plaintiff" did not raise an issue of fact.
2. The principal contention made is that the answer does not state facts sufficient to constitute a defense or counterclaim. Upon the trial the first and third defenses were abandoned and we may disregard the fourth, since it is a mere repetition of the second defense, except that the second includes a counterclaim for the amount paid by the defendants for freight from Aurora, Ill., to Finch, Mont.
Stripped of the great mass of superfluous words, the following allegations, in substance, are to be found in the second affirmative defense: That at the time the machine was purchased the defendants were contractors engaged in road construction work; that they were in need of a machine which would screen gravel and elevate it for loading; that the negotiations which resulted in the sale were conducted by D R. Petrie, the agent of the plaintiff, and by the defendant Henry Schleuter; that Petrie represented to defendants that he was skilled and experienced in furnishing road construction machinery of this character; that he knew the kind and character of machinery which defendants needed, the purpose for which it was to be employed, and all the circumstances surrounding their work; that, for the sole purpose of inducing the defendants to purchase the machine in question, Petrie willfully, falsely and fraudulently represented that the machine in question was adapted to the use for which the defendants desired to employ it, and that it would elevate, screen, and move 350 to 400 cubic yards of gravel per day for the work upon which defendants were engaged; that in fact the machine was wholly unfit for defendants' purposes and worthless to them, and would not elevate, screen, and move more than 100 cubic yards of gravel per day, which facts were known to Petrie when he made the representations above; that defendants relied upon the superior knowledge, skill, and experience of Petrie, and upon the representations made by him when they purchased the machine; that they did not have any opportunity to examine the machine until after the purchase was made and the machine was delivered, and that, as soon as they discovered that the machine was useless for the purpose for which they intended it, they rescinded the sale and returned the machine.
In stating the elements of actionable fraud predicated upon false representations, the authorities do not always employ the same terms. Local statutes are responsible for the variations to some extent, but, speaking generally, it will be found upon analysis that there is singular unanimity of views. In 26 C.J. 1062, it is said that the elements are (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intention that it should be acted upon by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance upon its truth; (8) his right to rely thereon; and (9) his consequent and proximate injury. All these elements, however, are said to be comprehended in the more general terms: Representation, its falsity, scienter, deception, and injury. 26 C.J. 1063.
In the case of Butte Hardware Co. v. Knox, 28 Mont. 111, 72 P. 301, where the defendant relied upon false representations of the seller to defeat the plaintiff's right to recover the purchase price of a machine, this court announced the rule that the answer must disclose with reasonable certainty the following facts: (a) That certain representations were made by the seller; (b) which the purchaser had a right to rely upon; (c) that the representations were false; (d) that the purchaser believed them to be true; (e) that he relied upon them; (f) was induced by them to make the purchase; and (g) in consequence thereof was injured. The doctrine of that case has been approved repeatedly, and has never been departed from in this jurisdiction, though the rule has not been stated in precisely the same terms on every occasion.
Measuring the pleading before us by that standard, we observe (a) that it is alleged directly that Petrie made the representations set forth above. It is contended by plaintiff, however, that assuming the representations were made as alleged, they do not furnish a foundation upon which actionable fraud may be predicated. It is the general rule that to constitute actionable fraud the misrepresentation must relate to an existing fact or a fact which has existed, thereby excluding mere expressions of opinion. Buhler v. Loftus, 53 Mont. 546, 165 P. 601. An exception to the rule is illustrated in Como Orchard Land Co. v. Markham, 54 Mont. 438, 171 P. 274.
The representation that the machine in question was fit and proper for the work for which defendants desired it, was, under the circumstances pleaded, a representation of fact. In 1 Black on Rescission and Cancellation, § 86, it is said:
"But, where an article is sold with knowledge that it is intended to be used for a particular purpose, a representation that it is fit and suitable for that special purpose is not an expression of opinion as to the future, but a representation of an existing fact."
The representation that the machine had...
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