Pratt v. Huber Mfg. Co.

• Decision Date: 04 November 1918
• Docket Number: 1915
• Citation: 171 N.W. 246,41 N.D. 301
• Court: North Dakota Supreme Court

171 N.W. 246

41 N.D. 301

R. H. PRATT and George A. Pratt, Copartners as Pratt Brothers, Respondents, v. HUBER MANUFACTURING COMPANY, a Corporation, Appellant

No. 1915

Supreme Court of North Dakota

November 4, 1918

[Copyrighted Material Omitted]

Action for fraud and deceit.

Appeal from the District Court of Griggs County, Honorable J. A Coffey, Judge.

Judgment for defendant set aside and a new trial ordered.

Reversed.

Reversed.

Lawrence & Murphy, for appellant.

The common law requires that the parties should form an issue of their pleadings before the case can be decided by a jury.

The trial is the examination of the facts in issue. 3 Bl. Com. 330; Deane v. Williamette Bridge Co. 29 P. 440; Jones v. Baird, 76 Ind. 164; Ft. Scott R. Co. v. Karracher, 46 Kan. 611, 26 P. 1027.

Findings must be responsive to the issues made by the pleadings, and portions thereof which are not may be stricken out. 38 Cyc. 1925, and note.

Where the facts properly found are sufficient to sustain the special verdict, it is not rendered insufficient because another special finding consists merely of a conclusion of law or of an immaterial fact not in issue. Pittsburg R. Co. v. Burton, 159 Ind. 357, 37 N.E. 150, 38 N.E. 594; Louisville R. Co. v. Berkey, 136 Ind. 181, 35 N.E. 3.

A special verdict should be construed fairly and reasonable, disregarding subtle and refined distinction or intendment and inference. Becknell v. Hosier, 10 Ind.App. 5, 37 N.E. 580; Keller v. Gaskill, 20 Ind.App. 502, 50 N.E. 363; Railsback v. Railsback, 12 Ind.App. 659, 40 N.E. 276, 1119; Ellwood v. Carpenter, 12 Ind.App. 459, 40 N.E. 548; Sirk v. Marion St. R. Co. 11 Ind.App. 680, 39 N.E. 421; Brason v. Studabaker, 133 Ind. 147, 33 N.E. 98; Woodward v. Davis, 127 Ind. 172, 26 N.E. 687; Pullman Palace Car Co. v. Gaylord, 9 Ky. L. Rep. 58; Mayo v. Keston, 78 Ga. 125, 2 S.E. 687; Cobb v. Wise, 71 Ga. 103; Voris v. Star City Bldg. etc. L. Asso. 20 Ind.App. 630, 50 N.E. 779; Tate v. Missouri R. Co. 143 Ill.App. 289; Alhambra Addition Water Co. v. Richardson, 72 Cal. 598, 14 P. 379; Fenn v. Blanchard, 2 Yeates, 543; Louisville, N. A. etc. R. Co. v. Lynch, 147 Ind. 165, 34 L.R.A. 293, 44 N.E. 997, 46 N.E. 471; Fenske v. Nelson, 74 Minn. 1, 76 N.W. 785; Everit v. Walworth County Bank, 13 Wis. 420.

A special verdict should be liberally construed, so that it will stand rather than fall; and if it expresses the findings of the jury upon the issues and facts, its form is immaterial. Everit v. Walworth County Bank, supra; Dodd v. Gaines, 82 Tex. 429, 18 S.W. 618; Pullman Palace Car Co. v. Gaylord, supra; Miller v. Shackleford, 4 Dana, 274; Voris v. Star City Bldg. & L. Asso. supra; Louisville, N. A. etc. R. Co. v. Costello, 9 Ind.App. 462, 36 N.E. 299.

An improper interrogatory and answer in a special verdict are immaterial where the verdict is sufficient regardless of them. Pittsburg R. Co. v. Back, 152 Ind. 421; Shipps v. Atkinson, 36 N.E. 375.

If any fact essential to support the complaint is not found plaintiff must fail. Shipps v. Atkinson, supra.

Fraud without damage or damage without fraud is not actionable. Both must concur in action for deceit. Enistein v. Marshall, 58 Ala. 153, 25 Am. Rep. 729; Kuentze v. Kennedy, 29 L.R.A. 360, 147 N.W. 124; Childs v. Merrill, 63 Vt. 463, 14 L.R.A. 264, 22 A. 626; Nelson v. Grondahl, 12 N.D. 130; London & L. Fire Ins. Co. v. Liebes, 105 Cal. 203, 38 P. 691; March v. Cook, 32 N.J.Eq. 262; Bartlett v. Blaine, 83 Ill. 25, 25 Am. Rep. 346; Danforth v. Cushing, 77 Me. 182; Hale v. Philbrick, 47 Iowa 217; Stetson v. Riggs, 37 Neb. 797, 56 N.W. 628; Bodkin v. Merit, 102 Ind. 293, 1 N.E. 625; Bigelow, Fraud, p. 541; 14 N.D. 248; People v. Cook, 8 N.Y. 67, 59 Am. Dec. 431; Eastwood v. Bain, 3 Hurlst. & N. 738; Hemingway v. Hamilton, 4 Mees. & W. 115.

There must only be a false representation made with intent to deceive, but the representation must be relied upon and cause damage to a party before an action will lie. Barber v. Kilbourn, 16 Wis. 485; Castleman v. Griffin, 13 Wis. 535; Freeman v. Venner, 120 Mass. 424; Ide v. Gray, 11 Vt. 615; Randall v. Haselton, 12 Allen, 412; Fuller v. Hogdon, 25 Me. 243; Alden v. Wright, 47 Minn. 225, 49 N.E. 767; Marriner v. Dennison, 78 Cal. 202, 20 P. 386; Bailey v. Fox, 78 Cal. 389, 20 P. 868; Morrison v. Lods, 39 Cal. 381; Purdy v. Bullard, 41 Cal. 444; Wainwright v. Weske, 82 Cal. 193, 23 P. 12; Southern Development Co. v. Silva, 125 U.S. 247, 31 L.Ed. 678, 8 S.Ct. 881; Smith v. Richards, 13 Pet. 26, 10 L.Ed. 42; Wainscott v. Occidental, etc. Asso. 98 Cal. 253, 33 P. 88; Huffman v. Long (Minn.) 42 N.W. 355; Johnson v. Seymour (Mich.) 44 N.W. 344; Armstrong v. Breen (Iowa) 69 N.W. 1125; Beara v. Bliley (Colo.) 34 P. 271; Nelson v. Grondahl, 12 N.D. 130, 96 N.W. 299; Sonnesyn v. Akin & Babcock, 14 N.D. 256.

H. R. Turner and Barnett & Richardson, for respondents.

Regardless of the general rule, the practice in North Dakota is to attack the inconsistency and insufficiency of a special verdict by a motion for a new trial. Beare v. Wright, 14 N.D. 26; Sonnesyn v. Akin, 14 N.D. 248; Johnson v. Glaspey, 16 N.D. 335; Ward v. Gradin (N.D.) 109 N.W. 57; Lathrop v. St. R. Co. 23 N.D. 246.

When the different parts of a special verdict are inconsistent and in conflict with each other, the verdict must be set aside. 24 L.R.A. (N. S.) 50, note 3; Lathrop v. Street R. Co. 23 N.D. 255.

In entering judgment the court can look only to the special verdict for the determination of the facts in issue. The evidence cannot take the place of findings. Ward v. Gradin (N.D.) 109 N.W. p. 60; McBride v. R. R. Co. (Wyo.) 21 P. 687; Lathrop v. St. R. R. Co. supra.

The question of value when material should not be proven by offers made or prices asked. Jones Ev. § 169; 16 Cyc. 1141 (4); 1142 (B).

BRUCE, Ch. J. GRACE, J., concurring in the result. ROBINSON, J. (dissenting).

OPINION

Statement of facts by BRUCE, Ch. J.

This is an appeal from an order of the district court setting aside a special verdict and the judgment entered thereon and ordering a new trial.

The complaint alleges the sale to the plaintiffs of a gasoline tractor engine, and "that the defendant at the time of making said sale represented to the plaintiffs that the tractor they were selling them was a new, up-to-date, and complete tractor, and that plaintiffs purchased same relying on said representations, that said machinery was new, complete and perfect, and that the machinery was capable of doing well the work for which it was manufactured, and that it was with reasonable care durable and capable at all times of performing the work, which representation was falsely and fraudulently made for the purpose of deceiving these plaintiffs and inducing them to purchase said machinery.

"That said tractor so delivered by the defendant to these plaintiffs was not new, was not complete, and was not up-to-date; that it was old, the parts worn, decayed, and damaged, and that in the condition said tractor was in it was wholly unfit to do the work for which it was intended; its parts, being old and decayed, were continually breaking; that it would not develop the power represented and warranted to develop, and that it was in no particular, the machinery represented and warranted to the plaintiffs and which the defendant represented to plaintiff it was delivered; that said tractor was an old, worn tractor but that for the purpose of deceiving and defrauding these plaintiffs said tractor had been repainted and was so covered with paint that an examination by these plaintiffs did not reveal to them the fact that it was an old and a worn tractor, and that during all of the years 1914 and 1915 and while these plaintiffs were working with and attempting to operate said tractor to put same in condition so that it would perform the work for which it was purchased, the defendant continued to represent and inform plaintiffs that said tractor was a new machine, that it was up-to-date, and that it could be made to comply with the conditions of the warranty upon which it was sold, and that these plaintiffs relying upon said representations and statements continued to attempt the operation and working of said tractor, and continually bought from the defendant extras and extra parts for said tractor, and hired workmen for the purpose of having said parts put on said machinery and for the purpose of having same repaired, and that if plaintiffs had not been deceived by the statements, warranties, and guaranty of the defendant they would not have attempted to operate said machinery, but that they did not know of said false and fraudulent representations until the spring of 1916, when they then learned that said tractor was an old worn tractor, the parts badly decayed and destroyed, and that it had been repainted and that thereby plaintiffs had been misled.

"That if said tractor had been as represented and warranted, and had it been a new up-to-date, perfect machine, it would have been worth the sum of three thousand two hundred fifty dollars ($ 3,250), the agreed purchase price thereof, but in the condition in which said machinery is and was it was of no worth or greater value than the sum of two hundred fifty dollars ($ 250).

"That in attempting to operate said machinery and in their attempt to make said machinery perform the work for which it was sold and for which it was intended, plaintiffs have expended the sum of three hundred eighty and 50-100 ($ 380 50) dollars that one hundred thirty-two and 50-100 ($ 132.50) dollars of said amount has been paid to the defendant for extra parts; that eighty dollars ($ 80) has been paid to Ludwig Rudd, a blacksmith, for his work and labor on said machinery, and that one hundred sixty-eight ($ 168) dollars of said amount has...