Foster v. Snead, 20

• Docket Nº: No. 20
• Citation: 69 S.E.2d 604, 235 N.C. 338
• Case Date: March 26, 1952
• Court: United States State Supreme Court of North Carolina

Page 604

69 S.E.2d 604

235 N.C. 338

FOSTER, v. SNEAD.

No. 20

Supreme Court of North Carolina.

March 26, 1952

D. Emerson Scarborough, Yanceyville, for plaintiff appellant.

Glidewell & Glidewell, Reidsville, for defendant appellee.

VALENTINE, Justice.

The defendant's allegation of fraud consists of an assertion that the plaintiff falsely and fraudulently stated to him that he sold from six to eight thousand gallons of gas per month in the operation of the filling station and that the business was worth $1,000 per month and that defendant acted upon these false and fraudulent statements to his injury. The burden of proving his allegation of fraud rested upon the defendant. Poe v. W. F. Smith & Co., 172 N.C. 67, 89 S.E. 1003.

The only evidence offered by defendant in support of his charge of fraud is the following conversations between him and the plaintiff: 'I said, 'How much is the station pumping a month?', and he (Mr. Foster) said, 'Six or eight thousand a month.' * * * I figured over the thing for approximately two weeks and went to his station one afternoon and I said, 'I come to get one bit of information--I figure this station has got to support my loan--I want you to tell me, on your word of honor, how much total business that station is doing a month,' and 'It would have to do $1000 for me to run it.' He said, 'The business is here' and that was his answer. And I said, 'I just wanted to know on your word of honor because I knew you were the one who knew.' He said the $1000 worth of business a month was there.'

The determinative question on this appeal is, did the defendant's proof meet the requirement of the rule laid down for the establishment of actionable fraud? On that question in Harding v. Southern Loan & Insurance Co., 218 N.C. 129, 10 S.E.2d 599, 601, Barnhill, J., speaking for the Court, said: 'The essential elements of actionable fraud or deceit are the representation, its falsity, scienter, deception and injury. The representation must be definite and specific; it must be materially false; it must be made with knowledge of its falsity or in culpable ignorance of its truth; it must be made with fraudulent intent; it must be reasonably relied on by the other party; and he must be deceived and caused to suffer loss. Our decisions are uniformly to this effect. Leggett Electric Co. v. Morrison, 194 N.C. 316, 139 S.E. 455; Peyton v. Griffin, 195 N.C. 685, 143 S.E. 525.'

Conceding without deciding that the statements attributed to the plaintiff by the defendant are sufficiently definite and specific to come within the rule, there is no evidence to show that these statements were false. Straus Co. v. Economys, 230 N.C. 316, 52 S.E.2d 802; Peyton v. Griffin, supra. It will be observed that the quoted language is in the present tense and can not be stretched to include a promise or declaration that the defendant would do $1000 worth of business a...