Kemmerer v. Pollard

• Court: United States State Supreme Court of Idaho
• Writing for the Court: AILSHIE, C. J.
• Citation: 96 P. 206,15 Idaho 34
• Parties: L. D. KEMMERER and WILLIAM MILES, Appellants, v. SOPHRONIA A. POLLARD and FRANCIS M. POLLARD, Respondents
• Decision Date: 28 May 1908

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

[15 Idaho 36] 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...