Hunt v. Lewis

• Decision Date: 09 May 1914
• Citation: 90 A. 578,87 Vt. 528
• Parties: HUNT v. LEWIS.
• Court: Vermont Supreme Court

90 A. 578

87 Vt. 528

HUNT

v. LEWIS.

Supreme Court of Vermont. Lamoille.

May 9, 1914.

Exceptions from Lamoille County Court; E. L. Waterman, Judge.

Action on the case for fraud by B. A. Hunt against C. S. Lewis. Demurrer to the declaration was sustained, and plaintiff excepted, and the cause was passed to the Supreme Court before trial. Affirmed and remanded.

Argued before POWERS, C. J., and MUNSON, WATSON, HASELTON, and TAYLOR, JJ.

B. A. Hunt, of Johnson, pro se. M. P. Maurice, of Morrisville, for defendant.

TAYLOR, J. This is an action on the case for fraud in procuring the services of the plaintiff, an attorney at law, not intending to pay therefor. The case was heard at the December term, 1908, of Lamoille county court on demurrer to the declaration. The demurrer was sustained and the declaration adjudged insufficient, to which the plaintiff was allowed an exception. The cause was passed to this court before trial.

The demurrer is general, and no grounds of demurrer were specified in the court below, the case having arisen before the adoption of the rule requiring specification of grounds of demurrer. The bill of exceptions throws no light upon the questions, and the plaintiff's brief affords very little assistance in understanding his position either here or in the court below. The defendant says that the declaration does not state a cause of action; that neither count contains sufficient allegations of fraud.

The first count alleges, in substance, that the defendant was in need of counsel for a certain case in which he was interested; that he employed the plaintiff as attorney to attend to the case for him at a certain compensation to be paid in money as soon as the service was performed; that the plaintiff performed the service relying upon the representation of the defendant that he would pay as soon as the service was performed; that the defendant "neglected and refused to pay the plaintiff after he received the said services, knowing all the time when he had engaged the plaintiff as aforesaid that he had not the money to pay for said services * * * and intending thereby to deceive and defraud the plaintiff, whereby the plaintiff hath deen deceived and damaged as aforesaid." The second count is much the same, except that therein the plaintiff alleges that the defendant employed him representing that he would and could pay for the services as soon as they were performed; that the plaintiff relied upon the representations of the defendant "then and there falsely and maliciously made for the purpose of procuring the services of the plaintiff"; "that the defendant did not know at the time of said arrangement that he could and would have the money and pay the plaintiff as aforesaid * * * and did not have the money and did not pay the plaintiff as aforesaid, whereby the plaintiff hath been defrauded," etc. In the amended count filed in county court the plaintiff alleges, in substance, that the defendant was possessed of $13 and not intending to pay the plaintiff hired him to perform certain services for an agreed compensation; that when the agreement was made defendant informed the plaintiff that he (defendant) had the money to pay him (plaintiff) and that his money was ready for him as soon as the service was performed, the defendant thereby intending to get the service of the plaintiff and avoid paying therefor and defraud the plaintiff thereby; that plaintiff relied upon the information and representations of the defendant so made and performed the service; that the defendant received the benefits of the service and refused to pay therefor, whereby the plaintiff has been defrauded, etc.

The principal point made in the plaintiff's brief is that fraud in procuring the service of a person on credit, like fraud in the purchase of goods, is actionable. The defendant does not controvert this position nor advance the claim that actionable fraud may not enter into a contract for personal service. While our attention has not been called to any such case, we fail to discover any inherent peculiarity in a contract for service on credit that takes it out of the ordinary rules concerning fraudulent representations. The sufficiency of the declaration may therefore be tested by the principles governing actions for deceit in the sale and purchase of real estate or personal property.

To constitute actionable fraud or...