Parker v. Herron

• Decision Date: 19 April 1917
• Parties: G. A. PARKER and F. S. MARSHALL, Appellants, v. I. A. HERRON, Respondent
• Court: Idaho Supreme Court

164 P. 1013

30 Idaho 327

G. A. PARKER and F. S. MARSHALL, Appellants, v. I. A. HERRON, Respondent

Supreme Court of Idaho

April 19, 1917

FRAUD-SCIENTER-EVIDENCE.

1. The evidence in this case examined and held to be insufficient to sustain the allegations of the answer wherein fraud is charged.

2. In order to establish fraud in a case of this kind it must be shown in addition to falsity of representations of a material fact, or facts, upon which the party to whom they were made innocently acted to his injury, that the party making them knew them to be false or that he made them recklessly without knowledge of their truth or falsity.

[As to what is sufficient proof of fraud, see note in 65 Am.Dec 157]

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Chas. O. Stockslager, Judge.

Action upon promissory notes. Judgment for plaintiffs in the sum of one dollar; they appeal. Reversed.

Judgment reversed, with direction. Costs awarded to appellants.

A. W Ostrom and George Herriott, for Appellants.

To constitute actionable fraud, each of the necessary elements must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery. (20 Cyc. 12, sec. A, and cases cited; Brown v. Bledsoe, 1 Idaho 746.)

A fraudulent intent is an essential element of every actionable fraud, and to support an action of deceit the existence of this intent must in some way be made manifest. (20 Cyc. 35, sec. 6, and cases cited; Lewark v. Carter, 117 Ind. 206, 10 Am. St. 40, 20 N.E. 119, 3 L. R. A. 440.)

C. M. Booth, for Respondent.

If the representation is made without belief in its truth, or made recklessly, without caring whether it be true or false, the representation may amount to fraud. (Derry v. Peek, L. R. 14 App. Cas. 337; Eichelberger v. Mills Land etc. Co., 9 Cal.App. 628, 100 P. 117; Hindman v. First Nat. Bank, 112 F. 931, 50 C. C. A. 523, 57 L. R. A. 108; Shackett v. Bickford, 74 N.H. 57, 124 Am. St. 933, 65 A. 252, 7 L. R. A., N. S., 646; Madden v. Caldwell Land Co., 16 Idaho 59, 67, 100 P. 358, 21 L. R. A., N. S., 332.)

MORGAN, J. Budge, C. J., and Rice, J., concur.

OPINION

MORGAN, J.

This action was commenced by appellants to recover the balance alleged to be due upon three promissory notes, for $ 400 each, given by respondent in payment for a second-hand gasoline engine, which he purchased from them for the purpose of furnishing power with which to operate a grain-separator.

Respondent, in his answer, admitted the execution of the notes, and that only the amount alleged in the complaint to have been paid thereon had been paid, but denied that any amount was due, and alleged that the machinery for which the notes were given was, by appellants, represented and described to him as being well built, properly adjusted and capable of performing the work for which it was intended; that by reason of these representations he bought the machinery giving therefor the notes above mentioned; that all the statements, representations and claims made by appellants to him regarding the machinery, as to the build, workmanship, adjustment and quality thereof, were false and fraudulent, and were known by appellants to be false and fraudulent at the time they were made; that such statements, representations and claims induced him to make, execute and deliver the notes set out in the complaint, and he claimed damages by reason of the alleged fraud of appellants in the transaction.

The case was tried by a jury, which returned a verdict in favor of appellants for the sum of one dollar. Judgment was thereupon entered, from which this appeal is prosecuted.

Appellants contend that the evidence is insufficient to establish the falsity of the representations relied upon by respondent.

The portion of the record tending to show that appellants, or either of them, made any representations whatever with respect to the engine is to be found in the testimony of respondent, and is as follows:

"Q. What did Mr. Marshall tell you, if anything, with reference to this engine, so far as its power and capacity was concerned?

"A. He told me it was a 20 horse-power gasoline traction engine and that the separator has a 28-inch cylinder.

"Q. What make of a separator was it?

"A. A Case.

"Q. You say that was a Case separator?

"A. Yes, sir.

"Q. Where did you buy the separator?

"A. From Parker and Marshall. Mr. Marshall was the agent and the man I done the business with.

"Q. Do you know whether or not, at the time you bought this engine, they knew you were buying it to run this separator?

"A. They certainly did; that is what I wanted; I wanted a complete outfit.

"Q. Now, at the time you bought the engine I will ask you to state whether or not Mr. Parker or Mr. Marshall told you anything as to whether or not this engine would successfully run this separator?

"A. That was my understanding, that it would. We had several talks over it; I forget how often we talked about it but it was some two or three times and he didn't say anything to the contrary, and of course we talked it over and I understood it was all right for that purpose.

"Q. You told him what you wanted with the engine, did you?

"A. Yes, sir."

While there is abundance of evidence tending to show that the engine failed, after respondent purchased it, to furnish power sufficient to successfully run the separator, it will be observed that the testimony above quoted falls far short of sustaining the allegations of the answer to the effect that statements and representations were made by appellants that the engine was well built, properly adjusted and capable of performing the work for which it was intended. It is true respon...