Kemmerer v. Pollard

• Decision Date: 28 May 1908
• Citation: 96 P. 206,15 Idaho 34
• Parties: L. D. KEMMERER and WILLIAM MILES, Appellants, v. SOPHRONIA A. POLLARD and FRANCIS M. POLLARD, Respondents
• Court: Idaho Supreme Court

96 P. 206

15 Idaho 34

L. D. KEMMERER and WILLIAM MILES, Appellants, v. SOPHRONIA A. POLLARD and FRANCIS M. POLLARD, Respondents

Supreme Court of Idaho

May 28, 1908

SALE OF PERSONAL PROPERTY-ACTION FOR DECEIT AND FRAUDULENT REPRESENTATIONS MADE BY VENDOR-SUFFICIENCY OF COMPLAINT-SUFFICIENCY OF EVIDENCE.

1. In an action by the vendee of personal property for deceit and false and fraudulent representations made by the vendor, upon the sale of such property, the complaining party must allege the particulars in which the representations and warranty were false and the extent and nature of the falsity and deception, so that the court may determine therefrom whether it was of a material and essential fact or immaterial and a matter of opinion and belief. It must also be alleged that the representation was false and fraudulent and that the purchaser believed and relied on the same and purchased on the strength of such false and fraudulent representation.

2. Where a purchaser of personal property retains the property and does not offer to rescind the contract and return the property, his action for damages on account of deceit and false and fraudulent representations made by the vendor is a ratification of the sale, and the action becomes one in tort for the fraudulent and wrongful misrepresentations and breach of the warranty.

3. Cross-complaint in this case held insufficient to charge deceit and false and fraudulent representations.

4. Evidence in this case examined, and held insufficient to support a verdict on the charge of false and fraudulent representations.

(Syllabus by the court.)

APPEAL from the District Court of the Sixth Judicial District, for the County of Lemhi. Hon. J. M. Stevens, Judge.

Action by the plaintiffs to recover on a promissory note given as part payment for the purchase of a vehicle. Answer and cross-complaint by the defendants admitting the sale and the execution and delivery of the note and attempting to charge deceit and false and fraudulent representations made by the vendor upon the sale of the property. Judgment for the defendants and plaintiffs appeal. Reversed.

Reversed and remanded, with direction. Costs awarded in favor of appellants.

John H Padgham, for Appellants.

Where fraud is relied upon, a general allegation charging fraudulent intent will not suffice; all the facts which the law requires as the elements of fraud and all which are claimed to be the constituents of the fraud in the particular case must be averred; and their absence may destroy the intended effect of the pleading and shut out all evidence in its support. (Pomeroy's Code Remedies, 4th ed, p. 789; Brackett v. Griswold, 112 N.Y. 467, 20 N.E. 376; Rothmiller v. Stein, 143 N.Y. 581, 38 N.E. 718, 26 L. R. A 148.)

The law raises no presumption of knowledge of falsity from the single fact per se that the representation was false. There must be something further to establish knowledge. (Southern Development Co. v. Silva, 125 U.S. 247, 8 S.Ct. 881, 31 L.Ed. 678.) In an action of deceit, or action founded upon false representations, it is requisite, to entitle to a recovery, not only to prove that the representations complained of were false, but that they were known by the vendor to be false. (Pearson v. Howe, 1 Allen, 208; Page v. Bent, 2 Met. 374; Webster v Larned, 6 Met. 527.) An allegation that "each and every of the said representations were false," but failing to disclose in what respect the representations were false, is not sufficient. (Specht v. Allen, 12 Ore. 117, 6 P. 494.) There is no allegation that appellants or their salesman knew the representations made to be false. (Holmes v. Clark, 10 Iowa 424; Pearson v. Howe, 1 Allen, 208; Page v. Bent, 2 Met. 374; Webster v. Larned, 6 Met. 527; Brown v. Bledsoe, 1 Idaho 747.)

Under the law governing cases of deceit, it is incumbent on respondents to allege wherein the vehicle was defective. Without this they are not entitled to introduce proof. Failing to disclose in what respect the representations are false, the pleading is not sufficient. (Specht v. Allen, supra; McCracken v. Robinson, 57 F. 375, 6 C. C. A. 400.)

G. B. Quarles and F. J. Cowen, for Respondents, cite no authorities on points decided.

AILSHIE, C. J. Sullivan, J., and Stewart, J., concur.

OPINION

AILSHIE, C. J.

This is an appeal from the judgment and was taken within sixty days after the rendition and entry thereof. The record contains a statement of the evidence in the case. The action was commenced by the plaintiffs to recover the principal, interest and $ 25 attorney's fee on a conditional sale note, of which the following is a copy:

"$ 62.50 August 15, 1902.

"On or before the first day of December, 1904, for value received I promise to pay to Kemmerer Vehicle Co., or order, at their office in Grinnell, Iowa, sixty-two 50-100 dollars with exchange and collection charges, with interest from date until due at the rate of 6 per cent per annum, and at the rate of ten per cent after due and reasonable attorney's fees if suit is commenced on this note.

"I own in my own name 320 acres of land in section Town of County of Lemhi State of Idaho which at a fair valuation is worth $ 5000.00 on which there are no incumbrances except for $ . I also own $ 500.00 worth of personal property over and above all exemptions and debts. There is no judgment against me. I make this statement at time of signing this note for the purpose of obtaining credit and it is understood that the ownership of this vehicle shall not pass from Kemmerer Vehicle Co., until fully paid for. No salesman has authority to make any agreement not upon the face of this note when made.

"Due Dec. 1st, 1904.

"Witness: W. H. CROOKS.

"K. V. Co's No. 1150.

"(Signed) Mrs. S. A. POLLARD.

"F. M. POLLARD."

The defendants answered, admitting the purchase of the vehicle and the execution of this note and contract, and that the same had not been paid. Defendants set up by way of separate answer and also as a cross-complaint:

"That prior to and at the time of said sale by plaintiffs and purchase by these defendants, plaintiffs exhibited to defendants parts of some vehicle, being wood and iron or steel, and at the same time and place represented the same to have been a part of one of the vehicles which had been in a runaway; that said wood had been splintered but would not break; that said steel had been bent and twisted but would not break; that plaintiffs represented to these defendants that this was the class of wood and quality of steel or iron in the vehicle offered to the defendants for sale; that plaintiffs represented to these defendants that the top on said vehicle was made of leather all of which representations these defendants believed to be true."

The answer continues by alleging that the vehicle was made of cheap material and that it proved to be a valueless piece of property, and had to be repaired and improved a great deal and that defendants had paid the sum of $ 102 on the contract, and that they had been damaged in that sum "by reason of the false and fraudulent representations of the plaintiffs so made," and prayed for a judgment in that sum for damages. The plaintiffs demurred to this separate defense and cross-complaint, but the trial court overruled the demurrer and the plaintiffs thereupon answered the cross-complaint and went to trial. The trial resulted in a verdict and judgment in favor of the defendants.

In the first place, the action of the court in overruling the plaintiff's demurrer to the separate answer and cross-complaint was error. The defendant's cross-complaint which attempts to plead deception and false representations made by the plaintiffs' agent on the sale of this vehicle and praying damages for breach of the warranty, is not sufficient to constitute false and fraudulent misrepresentation or to entitle the defendants to recover on a breach of warranty of the goods. The defendants never offered to rescind the contract and return the property. On the contrary, they kept and used the property and had been using it some three and one-half years at the time this cross-complaint was...