Hull v. Flinders
| Decision Date | 04 December 1933 |
| Docket Number | 5139 |
| Citation | 27 P.2d 56,83 Utah 158 |
| Court | Utah Supreme Court |
| Parties | HULL v. FLINDERS |
Appeal from District Court, Second District, Weber County; E. E Pratt, Judge.
Action by Willard Hull against Fred F. Flinders. From a judgment sustaining a demurrer to complaint and dismissing the action plaintiff appeals.
JUDGMENT OF DISMISSAL SET ASIDE, with directions.
Thatcher & Young, of Ogden, for appellant.
De Vine, Howell & Stine, of Ogden, for respondent.
This is an action to recover damages for alleged fraud. Defendant's general demurrer to plaintiff's second amended complaint having been sustained, and plaintiff having elected to stand on such complaint, a judgment dismissing the action was made and entered in the district court of Weber county: From the judgment of dismissal plaintiff appeals.
The complaint alleges that defendant organized the General Finance Company; that he and his son subscribed for a majority of its stock; that defendant became president and general manager; that the company was organized to take over the real estate and insurance business theretofore conducted by defendant; that plaintiff employed defendant as a real estate broker, and the latter effected a trade of plaintiff's farm for a home in Ogden upon which there was a mortgage of $ 3,500 payable in installments not yet due; and that defendant was the agent of the mortgagee. Plaintiff had $ 3,500 in cash with which he desired to pay the mortgage, but defendant stated the mortgagee would not receive it. It is further alleged that on or about July 11, 1927, the defendant, for the purpose of defrauding plaintiff, falsely and fraudulently stated and promised that, if plaintiff would pay over to defendant this money, he (the defendant) would pay said mortgage as and when it became due and as a guaranty of his performance he would deposit in escrow bonds of the General Finance Company of the value of $ 3,500; that, if defendant failed to make said payments or if he died, these bonds would be ample protection to plaintiff against loss. It is then alleged that defendant had no intention of fulfilling said promise when made, but that it was made with intent to defraud plaintiff of his money; that, to induce plaintiff to pay over his money to the defendant, the defendant made false and fraudulent representations concerning the General Finance Company by stating that it had assets of from $ 75,000 to $ 100,000; that it was as safe as any bank in Ogden; that its bonds were as good as gold coin; that, by accepting these bonds as collateral security, plaintiff would be as safe as if he had deposited his money in any bank in Ogden to await maturity of the mortgage indebtedness. Plaintiff alleged his ignorance concerning corporate matters, a lack of knowledge concerning the General Finance Company, his lack of schooling, impaired eyesight, his failure to read the purported contract before signing, the assurance of defendant that it correctly set forth their agreement, and the confidence he reposed in defendant. He then alleged the signing of a written contract with the General Finance Company and the making of a check for $ 3,500 payable to the General Finance Company; that the contract was drawn and the check was made out by defendant and presented by him to plaintiff to sign; that plaintiff signed the contract and the check upon the representations of the defendant; that the written agreement contained the promise on his part to pay the mortgage as and when it became due; that the defendant deposited the money to the general account of the General Finance Company which received the benefits therefrom. The falsity of each of the representations is pleaded with particularity to the effect that the agreement as written was not as represented; that, instead of it being the obligation of the defendant personally, it was in fact made the obligation of the General Finance Company, and was signed by the defendant as its president; that, instead of the defendant depositing bonds of the company as collateral, he issued and deposited unissued preferred stock of that company of the par value of $ 3,500 as a guaranty of its own promise to pay the mortgage; that the representations concerning solvency, financial responsibility, and the assets, the net value, and the value of its preferred stock were all false and untrue, all of which was known to the defendant and unknown to the plaintiff, who relied upon the representations as made. It is alleged that the corporation partly performed by paying $ 400 in installments when due on the mortgage, and, when the next installment became due, plaintiff learned of the failure of the corporation to pay such installment because of its insolvency, and then for the first time learned of the fraud and that it was the corporation and not the defendant who had by the written contract obligated itself to pay the mortgage. It is alleged that the corporation is insolvent and unable to pay the balance of the mortgage, and that the collateral is worthless, that there is a balance still unpaid on the mortgage of $ 3,100 which plaintiff must pay to protect his property. Plaintiff alleged that upon discovering the fraud he elected to affirm the contract and pursue his remedy for damages against the defendant.
Plaintiff contends this complaint states a cause of action in deceit and that it alleges a promise or agreement made by defendant fraudulently with no present intention of performing, and, in addition thereto, that it alleges false representations with respect to the character and value of the security defendant promised to post as security for the payment of the mortgage. Defendant contends that the facts alleged indicate merely that plaintiff had an option of two remedies, viz. an action against the defendant for money had and received, or an action for damages for breach of contract, and, since plaintiff did not seek to recover by either of these remedies, the demurrer to...
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...supra; Adamson v. Brockbank, supra; Nielson v. Leamington Mines & Exploration Corporation, 87 Utah 69, 48 P.2d 439; Hull v. Flinders, 83 Utah 158, 27 P.2d 56. We think there is a total lack of evidence of bad faith or lack of intent to perform, on the part of the defendants at the time of t......
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...made by it to be true. The representations concerned material facts, and they were relied upon by plaintiff. In Hull v. Flinders, 83 Utah 158, 27 P.2d 56, we held that, where such representations were untrue known to be untrue by defendant at the time they were made, they would sustain an a......
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...future intention is actionable if a fraudulent intention existed at the time the deceitful statement was made. See also Hull v. Flinders, 83 Utah 158, 27 P.2d 56 (1933); compare State v. Bruce, 1 Utah 2d 136, 262 P.2d 960 (1953). In the instant case the jury found the necessary fraudulent i......
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