Nat'l Cash Register Co v. Store

• Decision Date: 28 March 1905
• Citation: 137 N.C. 652,50 S.E. 306
• Court: North Carolina Supreme Court
• Parties: NATIONAL CASH REGISTER CO. v. TOWNSEND GROCERY STORE.

137 N.C. 652

50 S.E. 306

NATIONAL CASH REGISTER CO.

v.TOWNSEND GROCERY STORE.

Supreme Court of North Carolina.

March 28, 1905.

FRAUD—FALSE REPRESENTATIONS—DEALER'S TALK—BURDEN OF PROOF.

1. In an action by the seller to recover the price of a chattel, the burden is on the buyer to prove that the execution of the contract of sale was induced by fraudulent representations.

2. Representations of the seller of a cash register that the same will save the expense of a bookkeeper, and that books can be kept thereupon in half the time that the books could otherwise be kept, and that the machine can be operated by any one of ordinary intelligence, are not representations as to material facts, and, though false, are not ground for a rescission by the buyer of the contract of sale.

[Ed. Note.—For cases in point, see vol. 23, Cent. Dig. Fraud, §§ 46, 47; vol. 43, Cent, Dig. Sales, §§ 122, 1045.)

Appeal from Superior Court, Robeson County; Ward, Judge.

Action by the National Cash Register Company against the Townsend Grocery Store. From a judgment for defendant, plaintiff appeals. Reversed.

Civil action brought by plaintiff against B. W. Townsend, trading as Townsend Grocery Store, in which plaintiff seeks to recover of defendant the sum of $480, balance due under a contract for the purchase of a cash register sold and delivered by plaintiff to defendant, heard at December term, 1904, of superior court of Robeson county, before Ward, J., and a jury. The plaintiff alleged the execution of the contract, the delivery of the machine thereunder, and the amount due. The defendant admitted the delivery of the machine, and at the trial admitted the execution of the contract, but denied the indebtedness, alleging that he was induced to purchase the machine by the fraudulent representation of one Stronach, the plaintiff's agent, and prays that the contract be rescinded. The court submitted the following issues: "(1) What is the balance due under the contract mentioned in the pleadings? Ans. $480. (2) Was the defendant induced to purchase the cash register by the false representations of the agent of plaintiff, as set forth in the answer? Ans. Yes. (3)a Did the defendant offer to surrender the said cash register to the plaintiff upon discovery ofsaid false representations? Ans. No. (4) What is the actual market value of the said cash register? Ans. $350." The plaintiff appealed.

McLean, McLean & McCormick, for appellant.

Mclntyre & Lawrence, for appellee.

BROWN, J. (after stating the facts). It is unnecessary to consider the 53 exceptions in the record. The plaintiff requested the court to charge that, upon the whole evidence, the plaintiff is entitled to recover of the defendant the sum of $480. We are of opinion that such instruction should have been given, or, rather, that at the close of the evidence, with the admissions of the parties, such should have been the judgment of the court. It is admitted that the defendant purchased the cash register at the price of $505, and that he paid $25 on it; that the same was delivered to him; and there is no claim made of any defect in the mechanical construction of the machine. The defendant signed a written contract securing the purchase of the machine, and stipulating the dates of payment. The defendant sets up an equitable defense—that the execution of the contract was induced by the false and fraudulent representations and deceit of the plaintiff's agent who sold him the machine, and asks for a rescission and cancellation of the contract. The burden of proof is therefore upon the defendant to establish such allegations by a preponderance of the evidence, and, failing to do so, the plaintiff is entitled to judgment for the balance due upon the contract price.

The allegations relating to deceit and fraud in the answer charge that the agent of the plaintiff stated to the defendant that the use of the cash register would save the expense of a bookkeeper; that the books could be kept upon the machine, and that it would not take half the time to keep the defendant's books as was required without a machine, and that it would save half of one clerk's time; and that the machine could be operated by a person of ordinary intelligence. We note that the answer fails to allege that such representations were not only false, but were known by the agent to be false, or, not knowing them to be true, he made them with a wrongful and fraudulent intent, or with reckless or wanton disregard of the truth. For such omission, the court might well have rendered judgment upon the pleadings. But as the case was tried before the jury, we have considered it as if such necessary averments were in the answer.

The material elements of fraud, as laid down by the text-writers, are, first, misrepresentation or concealment; second, an intention to deceive, or negligence in uttering falsehoods with intent to influence the actions of others; and, third, the success of the deceit in influencing the action of the other party. To constitute legal fraud which will warrant the rescission of a contract, there must be a material representation of a material fact. There are eases in the books where courts of equity have afforded relief from the consequences of innocent misrepresentation. Contracts induced thereby have in some instances, and under peculiar circumstances, been set aside; but in all the cases the misrepresentation was of a material and subsisting fact. No particular rule can Be laid down as to what false representation will constitute fraud, as this must necessarily depend upon the facts of each case, the relative situation of the parties, and their means of information. But all the authorities are to the effect that where the false representation is an expression of commendation, or is simply a matter of opinion, the courts will not...