New v. Jackson

• Decision Date: 06 June 1911
• Docket Number: 6,957
• Citation: 95 N.E. 328,50 Ind.App. 120
• Parties: NEW v. JACKSON
• Court: Indiana Appellate Court

95 N.E. 328

50 Ind.App. 120

NEW v. JACKSON

No. 6,957

Court of Appeals of Indiana

June 6, 1911

Rehearing denied November 16, 1911.

Transfer denied April 4, 1912.

From Henry Circuit Court; Ed. Jackson, Judge.

Action by Thomas A. Jackson against Thomas H. New. From a judgment for plaintiff, the defendant appeals.

Affirmed.

William Ward Cook, Charles H. Cook, William A. Hough, Mark E. Forkner and George D. Forkner, for appellant.

James E. McCullough, William C. Welborn and Eugene H. Bundy, for appellee.

HOTTEL J., Felt, P. J., not participating.

OPINION

HOTTEL, J.

Action for damages for alleged fraud perpetrated by appellant on appellee in the exchange and trade of certain properties. The cause was tried by jury, on a complaint in one paragraph, and an answer in general denial. There was a general verdict and judgment for appellee in the sum of $ 2,600. Appellant filed motion for new trial, which was overruled and exception saved.

Appellant, in his brief, insists that the complaint omits material allegations, but no error is assigned which presents to this court any question as to its sufficiency. The only error assigned and presented by appellant's brief is the overruling of the motion for a new trial.

The first ground of the motion for new trial, relied on and presented by appellant under his points and authorities, relates to errors which appellant insists were committed by the court below in the giving of instructions. Only such instructions as are pointed out in the points and authorities as objectionable will be considered by this court on appeal. Knapp v. State (1907), 168 Ind. 153, 163, 79 N.E. 1076; Inland Steel Co. v. Smith (1907), 168 Ind. 245, 252, 80 N.E. 538.

Instruction number one, given at request of appellee, of which appellant makes complaint, is practically a copy of language used by the Supreme Court in the case of Frenzel v. Miller (1871), 37 Ind. 1, 17, 10 Am. Rep. 62, where the court announces as applicable to fraudulent representations four separately numbered "principles of law * * * fairly and logically deducible from the * * * authorities." The instruction here complained of does not attempt nor purport to include all the principles, that enter into fraudulent representations, but in so far as it makes such attempt it is in perfect accord with said principles announced in said case. The principles announced in this case have been approved in many of the more recent cases; and in the case of Krewson v. Cloud (1873), 45 Ind. 273, the Supreme Court, in referring to objections made to the complaint and instructions given in the case last mentioned, used the following language, which is very applicable to the repeated objections urged by appellant to instructions in this case. "The second paragraph of the complaint and the instructions given are in exact accord with the principles of law enunciated by this court in Frenzel v. Miller [1871], 37 Ind. 1 . It would be a useless waste of time to attempt to restate and reexamine the questions so fully considered in that case. We are entirely satisfied with such ruling, and have adhered to it in several subsequent cases."

Appellee's instructions numbered two, three and four, objected to, simply undertake to define the character of the misrepresentation that will constitute fraud, and do not attempt to include all the necessary elements to a recovery. The principles declared in each are supported by the decisions of the Supreme Court, as announced in the following cases: Ray v. Baker (1905), 165 Ind. 74, 88, 74 N.E. 619; Laidla v. Loveless (1872), 40 Ind. 211, 216, 217; Peter v. Wright (1855), 6 Ind. 183; Bethell v. Bethell (1883), 92 Ind. 318, 326, 327; Parrish v. Thurston (1882), 87 Ind. 437, 438.

Appellant objects to these several instructions on account of certain alleged omissions, and cites a number of cases which correctly hold that where an instruction undertakes to tell the jury just what is necessary in order to maintain an action or defense, it must be complete as well as correct. We recognize this rule as correct, and our holding with reference to the instructions here considered is in no sense in conflict therewith. Neither of the instructions in question attempts to state the entire law of the case, nor the facts necessary to entitle appellee to a recovery, nor do we think it can be said that either attempts to state every element that enters into and constitutes fraud. In so far as each of said instructions attempts to state the law of the case, applicable to the particular element of fraud discussed therein, each instruction correctly states the same, and other instructions given correctly cover all omissions complained of, on which appellant was entitled to an instruction.

Counsel urge against these instructions generally, that they omit an important element necessary to be proven to constitute fraud, viz., the element of knowledge on the part of appellant that the representations made were false. But, under the holdings of this court and the Supreme Court, this is not a necessary element of fraud. Kirkpatrick v. Reeves (1889), 121 Ind. 280 at 280-282, 22 N.E. 139; Frenzel v. Miller, supra; Roller v. Blair (1884), 96 Ind. 203, 205; Bethell v. Bethell, supra; West v. Wright (1884), 98 Ind. 335, 339; Furnas v. Friday (1885), 102 Ind. 129, 1 N.E. 296; Slauter v. Favorite (1886), 107 Ind. 291 at 291-299, 4 N.E. 880, 57 Am. Rep. 106; Bolds v. Woods (1894), 9 Ind.App. 657, 36 N.E. 933; Culley v. Jones (1905), 164 Ind. 168, 172, 173, 73 N.E. 94.

But counsel insist that in the absence of such an element in the charge, the court should have told the jury that the statements must have been recklessly made without regard for their truth. In this counsel are in error. In the case of Furnas v. Friday, supra, the court said on this subject, at page 130: "It is clear that the paragraph before us does not charge fraud, for it does not aver that there was any purpose to defraud, nor that there was any reckless misstatement. On the contrary, the fair conclusion from the facts stated is, that the appellant acted honestly, stated what he believed to be true, and gave the plaintiff a full opportunity to examine the sheep for himself. If the complaint had shown that the defendant professed to be an expert, and that he induced the plaintiff to rely upon his superior judgment or skill, or if it had shown that the defendant made the representations for a fraudulent purpose, or had recklessly made them, a very different case would have been presented." (Our italics.)

In the case of Kirkpatrick v. Reeves, supra, at page 282, the court said: "A belief in the truth of a statement does not always clear the person who makes it of a fraudulent purpose or relieve him from liability. * * * An unqualified statement that a fact exists, made for the purpose of inducing another to act upon it, implies that the person who makes it knows it to exist and speaks from his own knowledge. If the fact does not exist, and the defendant states of his own knowledge that it does, and induces another to act upon his statement, the law will impute to him a fraudulent purpose." (Our italics.) See, also, Slauter v. Favorite, supra; Furnas v. Friday, supra; West v. Wright, supra; Roller v. Blair, supra; Bethell v. Bethell, supra; Brooks v. Riding (1874), 46 Ind. 15; Krewson v. Cloud (1873), 45 Ind. 273; Booher v. Goldsborough (1873), 44 Ind. 490; Frenzel v. Miller, supra; 8 Am. and Eng. Ency. Law 642; Fisher v. Mellen (1870), 103 Mass. 503; Brownlie v. Campbell (1880), 5 App. Cas. 925; Slim v. Croucher (1860), 1 De G. F. & J. (62 Eng. Ch.) *518; Bullis v. Noble (1873), 36 Iowa 618; Raley v. Williams (1880), 73 Mo. 310; Oregonian R. Co. v. Oregon R., etc., Co. (1885), 23 F. 232, 10 Sawyer, 464; Cragie v. Hadley (1885), 99 N.Y. 131, 1 N.E. 537, 52 Am. Rep. 9.

The court in the instructions given in this case told the jury, in effect, that before appellee was entitled to recover, he must show that the representations charged were made for the fraudulent purpose of inducing him to make the trade in question. Appellant also insists that the authorities relied on by appellee, on this question, are all cases in equity, seeking a rescission and cancelation of the contract, and that the principles therein stated do not apply to a case like the one at bar, seeking to recover damages on account of the fraudulent representations. The question here involved, viz., whether or not it is necessary that the party making the false representations at the time knew them to be false in order to constitute them fraudulent, is discussed in the case of Frenzel v. Miller, supra, and decided adversely to appellant's contention. This case, as well as all the cases cited and quoted from, recognizes that the representations must be made with a fraudulent intent and purpose. Herein lies the difference between cases like the one at bar and cases in equity seeking relief from mutual mistake, the result of misrepresentations innocently made.

Instruction number twelve is objected to, but no ground of objection is stated in appellant's points and authorities, other than that the instruction was "fatally erroneous." Under the well-established rules of this court, such an objection is too indefinite and uncertain, and therefore not available. Inland Steel Co. v. Smith, supra; Knapp v. State, supra.

Instructions numbered one and two, given by the court on its own motion are objected to. Instruction number one sets out the allegations of the complaint in detail and with particularity, and tells the jury that "To this complaint the defendant has answered by a general denial, and this forms the issue you are to try." There was certainly no error in such an instruction. The second instruction...