Gilbert v. Dodge

• Citation: 156 A. 891
• Parties: GILBERT v. DODGE. BECKLER v. SAME.
• Decision Date: 13 November 1931
• Court: Supreme Judicial Court of Maine (US)

156 A. 891

GILBERT

v. DODGE.

BECKLER

v. SAME.

Supreme Judicial Court of Maine.

Nov. 13, 1931.

In other words, declaration must contain averments showing material representations of past or existing facts were false, known by defendant to be false when he made them; that representations were positively made as within defendant's own knowledge, or in reckless disregard as to whether they were true or false; that plaintiff relied and acted on the representations, as intendment or natural inducement was that he should; that deception was successful, and plaintiff misled to his damage thereby.

Exceptions and On Motion from Superior Court, Androscoggin County.

Separate actions by Clarence I. Gilbert and by Bertha Adams Beckler against Horace S. Dodge. On exceptions to allowance of amendments to declarations.

Exceptions sustained.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, FARRINGTON, and THAXTER, JJ.

Frank A. Morey, of Lewiston, for plaintiffs.

Clifford E. McGlauflin, of Portland, for defendant.

DUNN, J.

These two actions, by different plaintiffs, are against the same defendant. Each original declaration consisted of a single count. Allegation was, in substance, that executory promises, made by the defendant to induce the purchase by the plaintiff of shares of the capital stock of a fertilizer company, had been broken, loss resulting. The statements, even if untrue, would not afford basis for tort for deceit.

General demurrers were sustained.

The respective plaintiffs amended, by leave of court, by adding a new count. The amendments were allowed, against objection by the defendant, who saved the law question.

The amendments, being themselves demurrable, did not avail the plaintiffs. Garmong v. Henderson, 112 Me. 383, 92 A. 322; Gray v. Chase, 115 Me. 350, 98 A. 910.

After reciting promises, not fraudulent in the legal sense, each new count alleges that a representation made by the defendant in offering the stock for sale, the representation going to the extent of the defendant's own pecuniary resources, and, being of relationship to his ability to buy back the stock, if plaintiff on becoming the purchaser thereof should ever want to sell the same, was false.

The declaration in an action of this nature requires formal averment of the elements of representation, falsity, scienter, deception, injury.

Material representations of past or existing facts must have been false, known by the defendant to be false when he made them, have been positively made as within his own knowledge, or in reckless carelessness as to whether they were true or false; the plaintiff must have relied and acted on the representations, as intendment or natural inducement was that be should, deception must have been successful, and plaintiff misled to his damage thereby. Hammatt v. Emerson, 27 Me. 308, 326, 46 Am. Dec. 598; Pratt v. Philbrook, 33 Me. 17, 22; Long v. Woodman, 58 Me. 49, 52; Braley v. Powers, 92 Me. 203, 42 A. 362; Atlas Shoe Co. v. Bechard, 102 Me. 197, 66 A. 390, 10 L. R. A. (N. S.) 245; Eastern Trust & Banking Co. v. Cunningham, 103 Me. 455, 70 A. 17; Hotchkiss v. Coal & Iron Co., 108 Me. 34, 41 78 A. 1108; Mullen v. Banking Co., 108 Me.

498, 503, 81 A. 948; Crossman v. Bancon & Robinson Co., 119 Me. 105, 109 A. 487; Prince v. Bracket, etc., Co., 125 Me. 31, 130 A. 509.

Allowance of the demurrable amendments constituted reversible error. Garmong v. Henderson, supra.

Defendant demurred to each amendment. The demurrers were overruled and exceptions taken. Defendant then pleaded not guilty; the pleas were joined; the cases were tried jointly. The jury returned verdicts for the plaintiffs.

When a demurrer is filed,...