Pierce v. Cole

• Decision Date: 23 December 1912
• Citation: 110 Me. 134,85 A. 567
• Parties: PIERCE v. COLE.
• Court: Maine Supreme Court

85 A. 567

110 Me. 134

PIERCE

v. COLE.

Supreme Judicial Court of Maine.

Dec. 23, 1912.

On Motion and Exceptions from Supreme Judicial Court, Kennebec County, at Law.

Action by George A. Pierce against Charles J. Cole. There was a verdict for plaintiff, and defendant brings exceptions, and moves for a new trial. Exceptions sustained.

Argued before SAVAGE, BIRD, HALEY, and HANSON, JJ.

Williamson, Burleigh & McLean, of Augusta, for plaintiff.

George W. Heselton, of Gardiner, for defendant.

SAVAGE, J. Action for deceit in the sale of a farm in 1907. The particular misrepresentation alleged is "that said farm for several years then last past had produced and cut thirty tons of hay in each year," which representation it is alleged was untrue. The plaintiff testified that the defendant said that the farm "was cutting 30 tons of hay," and particularly of that year, 1907. "He showed me the hay in the barn there, and told me there was 30 tons. He said that it was all that year's hay."

The defendant denies making any representation about the quantity of hay cut, except that at the interviews in the barn, being asked by the plaintiff bow much hay he thought there was in the barn, he replied: "I don't know. You must judge for yourself. I think there is about 30 tons." He does not deny that he said the hay in the barn was cut that year. In fact, it is his claim that the farm did cut substantially 30 tons of hay that year, and had done so for the preceding years, or, if not, that he had reason to believe, and did believe so, that whatever representations he made he made in good faith, and without an intention to deceive. The verdict being for the plaintiff, the case comes up on the defendant's exceptions and motion for a new trial.

Several of the exceptions relate to one subject-matter, and may be considered together. To the question, "Were all the representations you made to the plaintiff made in good faith?" the answer was excluded on the ground that it was immaterial. The presiding justice declined to instruct the jury as requested by the defendant that the plaintiff, to prove his case, must show "that the defendant intentionally made false representations of the amount of hay cut on his farm; that the defendant knew that the representations regarding the hay were false, or so recklessly made them as a fact, without regard to their truth or falsity, when be was able to ascertain their truth or falsity; that if the statements which the defendant made regarding the hay were based upon honest beliefs that they were true, and not recklessly made by him as a fact when the truth could have been ascertained, and he did not in making these statements intend to deceive, the action cannot be maintained, so, if the defendant did not know that the statements were false, or did not recklessly state a larger amount when he could readily have ascertained the actual amount, but gave the plaintiff his best judgment without intent to deceive, so, also, unless the plaintiff shows that there was an intent on the part of the defendant to deceive the plaintiff concerning some material fact by representation made with a knowledge of the falsity of this fact, or made recklessly without regard to the truth or falsity of the fact."

The presiding justice, instead of giving the jury the requested instructions, instructed them as follows: "If one person makes a statement of a positive fact, the truth of which can be ascertained, as of his own knowledge, and that statement is untrue, and he has made that statement for the purpose of inducing another party to act upon it, and the other party relying upon the statement, being induced by the statement, and without knowledge of its falsity on his own part, does act upon such statement to his damage, then such statement is such a misrepresentation as will sustain an action of deceit, * * * and it is not necessary that the false statement should be made with a fraudulent purpose and with intention on his part to cheat or defraud." This statement omits to say that the representation must be concerning a material fact, and that it must be the representation of a fact, and not the expression of an opinion, but these are covered elsewhere in the charge.

The defendant urgently contends that the requests do, and that the charge does not, correctly state the fundamental requisites of proof in an action of deceit. We must hold otherwise. The law in this state has been stated, affirmed, and reaffirmed several times of late, and must now be regarded as settled. The full rule of proof, as was said in Hotchkiss v. Coal & Iron Co., 108 Me. 34, 41, 78 Atl. 1108, is that the plaintiff must show that the representations were intentionally made with the intent that he should act upon them, or in such manner as would naturally induce him to act upon them; that they were false, and were known to the defendant to be false, or, being of matters susceptible of knowledge, were made as of a fact of his own knowledge; that they were expressions of past or existing facts, and not expressions of opinion; that they were material; and that he relied upon them, was deceived, was thereby induced to act, and was thereby damaged. Braley v. Powers, 92 Me. 203, 42 Atl. 362; Atlas Shoe Co. v. Bechard, 102 Me. 197, 66 Atl. 390, 10 L. R. A. (N. S.) 245; Goodwin v. Fall, 102 Me. 353, 66 Atl. 727; Eastern Trust & Banking Co. v. Cunningham, 103 Me. 455, 70 Atl. 17. See, also, Litchfiefd v. Hutchinson, 117 Mass. 195. In the latter case the court said: "If he states, as of his own knowledge, material facts susceptible of knowledge, which are false, it is a fraud which renders him liable to the party who relies and acts upon the statement as true, and it is no defense that he believed the facts to be true. The falsity and fraud consist in representing that he knows the facts to be true of his own knowledge, when he has no such knowledge." Therein is the deceit.

It is true that the defendant in his...