Herrick v. State

• Decision Date: 20 December 1963
• Citation: 159 Me. 499,196 A.2d 101
• Parties: , 99 A.L.R.2d 918 Myron S. HERRICK v. STATE of Maine.
• Court: Maine Supreme Court

Page 101

196 A.2d 101

159 Me. 499, 99 A.L.R.2d 918

Myron S. HERRICK v. STATE of Maine.

Supreme Judicial Court of Maine.

Dec. 20, 1963.

Christopher S. Roberts, Rockland, for plaintiff.

John W. Benoit, Asst. Atty. Gen., Augusta, for defendant.

Before WILLIAMSON, C. J., and TAPLEY, SULLIVAN, SIDDALL and MARDEN, JJ.

MARDEN, Justice.

Upon writ of error reported from the Superior Court.

To an indictment under the provisions of Section 11, Chapter 133, R.S., as amended, the pertinent portions of which read as follows:

'The Grand Jurors for said State upon their oath present that Gerard L. Freve and Harold S. Soper, * * * and Alton G. Harrington and Myron S. Herrick, * * * feloniously, designedly and with intent to defraud did falsely pretend to one Ada M. Durell that certain repairs were necessary on the roof and chimney of the home of said Ada M. Durell, there situate, and that they, the said respondents, had performed certain labor and furnished certain materials, and would perform certain labor and would furnish certain materials, all for the repair of said roof and chimney, and that all of said repair and materials performed and furnished and to be performed and furnished as aforesaid had an aggregate value of six hundred fifty dollars, which was then and there due and owing to the said respondents from the said Ada M. Durell, whereas in truth and in fact the said repairs were not necessary as represented by said respondents, and the said respondents had not performed and furnished and did not intend to perform and furnish any labor and materials for said repairs of the aggregate value of six hundred fifty dollars, or even approaching that aggregate value, but did perform and furnish and intended to perform and furnish labor and materials for said repairs of an aggregate value not exceeding two hundred dollars, all of which the said respondents then and there well knew, * * *,'

with further usual allegations that the representations were made with intent to defraud, that Ada M. Durell believed the representations, relied upon them, was deceived and did pay to the respondents six hundred fifty dollars, the petitioner entered a plea of guilty and was sentenced. By petition for writ of error he now contends that the indictment charges no crime and seeks to have his conviction and sentence 'reversed, recalled and corrected.' The indictment is to be tested as though challenged by demurrer.

Petitioner urges that the indictment purports to charge two false pretenses of fact,----

(1) That certain repairs were necessary on the roof and chimney of the home of said Ada M. Durell * * * whereas in truth and in fact the said repairs were not necessary.

(2) That the respondents had performed and would perform labor and had furnished and would furnish materials for repairs of the value of six hundred fifty dollars, whereas in truth and in fact they had not and did not intend to so perform and furnish repairs of the value of six hundred fifty dollars, but had and did accomplish repairs not exceeding two hundred dollars in value.

That these representations were made with an intent to defraud and that Ada M. Durell was defrauded is not in issue.

'A false pretence is such a fraudulent representation of an existing or past fact, by one who knows it not to be true, as is adapted to induce the person to whom it is made to part with something of value.' Bishop, Criminal Law 9th Ed. § 415, p3 (Vol. 2).

To this common law definition embodied in our statute has been added, 'A promise, if unconditional and made without present intention of performance, will constitute a false pretense * * *'.

If any one of several pretenses are of fact falsely made with intent to deceive, the indictment is good and there is no error. State v. Dunlap, 24 Me. 77, 78; State v. Smith, 324 S.W.2d 702, 706[2, 3] (Mo.1959); Whitaker v. State, 11 Ga.App. 208, 75 S.E. 258, 260 (1912).

In contending that the indictment pleaded no false representations of fact within the provisions of the reference statute it is urged that the allegation that repairs were 'necessary' was only an expression of opinion, and as such could form no basis for a criminal charge. Wharton's Criminal Law & Procedure § 591, State v. Deschambault, 159 Me. 216, 218, 191 A.2d 119, and on the civil side in deceit, Shine v. Dodge, 130 Me. 440, 443, 157 A. 318.

As to the second allegation, if we understand petitioner's position correctly, it is argued that charging six hundred fifty dollars for two hundred dollars worth of work is in itself no crime, under the principles of 'caveat emptor'.

Allegation as to Necessity of Repairs

'The word 'necessary' must be considered in the connection in which it is used, as it is a word susceptible of various meanings. It may import absolute physical necessity or inevitability, or it may import that which is only convenient, useful, appropriate, suitable, proper, or conducive to the end sought. * * * It * * * may express mere convenience or that which is indispensable * * *. * * * (I)ts force and meaning must be determined with relation to the particular object sought, and is a relative and comparative term, depending upon its application to the object sought, * * *.' Kay County Excise Board v. Atchison, T. & S. F. Ry. Co., 185 Okl. 327, 91 P.2d 1087, 1088 (1939).

To the same effect Illinois Bell Telephone Company v. Fox et al., 402 Ill. 617, 85 N.E.2d 43, 51[12, 13] (1949); and as illustrated in Cushing v. Gay, 23 Me. 9, 16 (indispensable); Sullivan v. Maine Central Railroad Company, 82 Me. 196, 198, 19 A. 169, 8 L.R.A. 427 (proper); Buck v. Biddeford, 82 Me. 433, 437, 19 A. 912 (appropriate); Cleveland v. Bangor, 87 Me. 259, 266, 32 A. 892 (propriety); Eaton v. Atlas Accident Insurance Company, 89 Me. 570, 573, 36 A. 1048 (suitable); State v. Conwell, Jr., 96 Me. 172, 173, 51 A. 873 (conducive to the end sought); State v. Beaudette, 122 Me. 44, 46, 118 A. 719 (indispensable), and in Webster et al. v. Seekamp et al., 4 Barn. & Ald. 352 such repairs as a prudent owner would order. See also Webster's Third New International Dictionary and 65 C.J.S. Necessary p. 266.

'The mere expression of an opinion which is understood to be only an opinion (emphasis added) does not ordinarily render the person expressing it liable * * * for obtaining property by false pretenses, at least where the opinion expressed is upon a matter concerning which a difference of opinion is likely to arise. * * * But, if one knows an opinion to be erroneous, the matter is as to him, not an opinion, but a subsisting fact; and, if he makes a statement contrary to what he knows to be the fact, he should not be allowed to escape the consequences on the theory that his statement concerns a matter of opinion.' (Emphasis added.) 22 Am.Jur., False Pretenses, § 15.

See also State v. Grady, 147 Miss. 446, 111 So. 148, 149[2-4] (1927); Whatley v. State, 249 Ala. 355, 31 So.2d 664, 666[2, 3], 174 A.L.R. 169 (1947) dictum; People v. Gordon, 71 Cal.App.2d 606, 163 P.2d 110, 123 [26-31] (1945); and Williams v. State, 77 Ohio St. 468, 83 N.E. 802, 14 L.R.A.,N.S., 1197 (1908).

In Thompson v. Phoenix Insurance Co., 75 Me. 55, 61, a case of deceit, the distinction is made between the falsehood of stating one opinion when the speaker held another and putting a statement in the form of an opinion when the speaker had positive knowledge to the contrary, the latter being actionable.

Further 'if a seller * * * possesses or assumes to possess superior knowledge of the property and asserts it to his vendee who has not had equal opportunity to gain such knowledge, his asserted opinion may be equivalent to an affirmation of fact and therefore actionable fraud.' Gordon, supra 163 P.2d at p. 124[26-31].

For the allegation that 'repairs were necessary' on the Durell roof to be held inadequate as a false pretense it would require determination that the statement was expressed as an opinion and subject it to the law recited above, or hold that the statement that 'repairs were necessary' on the Durell roof was, as a matter of law, an expression of opinion.

We have no basis for finding that the statement of 'necessity' was expressed as an opinion,--'In our opinion repairs are necessary on your roof.' If such statement as was made were not an opinion in its express terms, the word 'necessary' could have meant one of many things,--that repairs were indispensable, proper, appropriate or conducive to good husbandry, and that such statement represented that the condition of the Durell roof was factually such that repairs were demanded by a requirement ranging from prudence to indispensability, which condition is negated.

It can be inferred from the indictment that someone, or all, of the respondents had already been or done work on the Durell roof, that they were in a position to know the conditions which then and there existed and in whatever sense they used the word 'necessary' the indictment charges a false statement of condition, quality, of existing fact. State v. Stanley, 64 Me. 157, 159.

It cannot be held that the challenged statement was by its nature an expression of opinion as a matter of law.

'Where one represents as true a thing which he knows not to be true, such a representation falls within the statute, even though in some situations the truth or untruth of the statement might be a matter of opinion.' 35 C.J.S. False Pretenses § 11.

See People v. Staver, 115 Cal.App.2d 711, 252 P.2d 700, 704[4, 5] (1953); and Holton v. State, 109 Ga. 127, 34 S.E. 358, 360 (Col. 1) (1899).

Whether the statement were an expression of opinion, by its nature or under the circumstances peculiar to this case rather than its specific phrasing, is a jury question.

'There is a point at...