Kisella v. Dunn

• Decision Date: 13 October 1954
• Docket Number: No. 5813,5813
• Citation: 275 P.2d 181,58 N.M. 695,1954 NMSC 99
• Parties: Joseph KISELLA and Clara Kisella, Plaintiffs-Appellants, v. W. T. DUNN, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 181

275 P.2d 181

58 N.M. 695

Joseph KISELLA and Clara Kisella, Plaintiffs-Appellants, v. W. T. DUNN, Defendant-Appellee.

No. 5813.

Supreme Court of New Mexico.

Oct. 13, 1954.

Hartley & Buzzard, Clovis, for appellants.

Smith & Smith, Clovis, for appellee.

McGHEE, Chief Justice.

The plaintiffs instituted this action by complaint seeking damages for fraud and deceit in connection with a trade of properties owned by the parties. After filing of the complaint the defendant moved for a definite statement under Rule 12(e), Rules of Civil Procedure, asking that plaintiffs state whether or not there was a written contract between the parties and that if there were such written contract that the plaintiffs be required to attach a copy thereof to their pleadings.

Without action on the part of the court on such motion the plaintiffs filed a paper erroneously entitled 'Bill of Particulars,' in which it was stated an exchange agreement had been executed and entered into between the parties, a copy of the contract being attached thereto. Thereafter the defendant answered with a general denial and moved for judgment on the pleadings. After a hearing on such motion the trial court entered judgment in favor of the defendant on the ground the plaintiffs had not stated a claim for which relief could be granted. From such judgment the plaintiffs appeal, under the single assignment it was error for the trial court to grant defendant's motion for judgment on the pleadings.

The determination of but one of the five points made by plaintiffs in this appeal is decisive of the case. It reads as follows:

'If a complaint contains allegations that the plaintiff was damaged by fraud in a trade of properties, and if the plaintiff subsequently answers a motion for a more definite statement by incorporating a contract concerning the trade in his pleadings, the terms of the contract are not final and conclusive for the purpose of a motion for judgment on the pleadings on the issue of reliance on the fraud, since the plaintiff could show at the trial on the merits that the original contract was modified to his damage through fraud.'

The allegations of plaintiffs' complaint respecting claim of fraud are brief and are hereafter set out in full:

'II. That on or about the 1st day of March, 1953, at Clovis, New Mexico, the defendant W. T. Dunn and Mrs. W. T. Dunn falsely and fraudulently with intent to deceive and defraud the plaintiffs represented to the plaintiffs that the Dunn Bros. Motor Co. had on stock $21,000.00 worth of automobile parts; when plaintiffs questioned defendant concerning the parts defendant and his wife, Mrs. W. T. Dunn, in the presence of plaintiffs, did state that there was $4,000.00 worth of current Nash automobile parts on stock at Dunn Bros. Motor Co. and that there was $2,000.00 worth of obsolete parts in said Nash agency.

'III. That said representations were false and were then and there known by the defendant to be false; that in truth and in fact there was only $3,909.63 worth of current Nash parts in said Dunn Bros. Motor Co.

'IV. That plaintiffs believed and relied upon said representations and were thereby induced to trade real estate in the State of California for said Dunn Bros. Motor Co., crediting said defendant with the sum of $14,000.00 current parts on said trade.'

These allegations were followed by a statement of damage to the plaintiffs in the sum of $10,090.37.

It is to be noted the second paragraph of the complaint set out above alleges the fraudulent misrepresentation was made on or about the 1st day of March, 1953. The contract attached to plaintiffs' definite statement is dated February 6, 1953, and generally provides that the plaintiffs would trade a motel they owned in Santa Monica, California, for a motor company owned by the defendant and his wife in Clovis, New Mexico. The property to be given in exchange by the defendant and his wife included a parts inventory, and the agreement contained this provision:

'Each party hereto has investigated the property hereby to be acquired and has placed his own valuation thereon without relying upon any representations by the agent.'

The trial court in its decision found the parties had entered into such contract; that the 'Bill of Particulars' filed by the plaintiffs pleaded a contract dated February 6, 1953; that the contract specifically stated each party had investigated the property for which they were trading and had placed their own valuation thereon; that the false representations complained of were alleged to have been made after the contract was entered into and could not have been the inducing cause of the contract; and that the written contract embodied the entire transaction between the parties.

Plaintiffs' point two set out above raises two legal issues. The first question respects the consideration to be given to plaintiffs' response to the defendant's motion for a definite statement in acting upon motion for judgment on the pleadings for insufficiency. It is apparently contended by the plaintiffs that the general allegations of fraud made in their complaint are to be held sufficient or insufficient within themselves and without recourse to the definite statement. Secondly, the question is raised, if plaintiffs' definite statement is to be considered on motion for judgment on the pleadings, whether having set forth the contract the allegations of the complaint are still sufficient to entitle the plaintiffs to show at the trial a breach of the contract, its subsequent oral modification resulting in terms more favorable to the defendant, and that such modification was entered into by the plaintiffs in reliance on fraudulent misrepresentations made by the defendant subsequent to the execution of the original contract, but prior to such modification.

By amendment in 1949 the provisions of Rule 12(e) respecting bills of particular were abolished. Sec. 19-101(12)(e), 1951 Supp. to N.M.S.A., 1941. Prior to this amendment the rule provided: '* * * a party may move for a more definite statement or for a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to prepare his responsive pleading or to prepare for trial. * * * A bill of particulars becomes a part of pleading which it supplements.' Sec. 19-101(12)(e), N.M.S.A.1941.

The rule as it now stands, in exact conformity with Federal Rules of Civil Procedure, Rule 12(e), 28 U.S.C.A., where similar amendment was adopted, provides in pertinent part:

'If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. * * *'

Although some federal cases made a distinction between the purpose of a bill of particulars...