Raser v. Moomaw

• Decision Date: 26 March 1914
• Citation: 78 Wash. 653,139 P. 622
• Parties: RASER v. MOOMAW et ux.
• Court: Washington Supreme Court

139 P. 622

78 Wash. 653

RASER v. MOOMAW et ux.

Supreme Court of Washington

March 26, 1914

Department 2. Appeal from Superior Court, King County; King Dykeman Judge.

Action by H. A. Raser against George A. Moomaw and wife. From a judgment for defendants, plaintiff appeals. Reversed and remanded for new trial.

Clise &amp Poe, of Seattle, for appellant.

O. E Sauter, of Seattle, for respondents.

FULLERTON J.

In this action the appellant sought to recover from the respondents for fraud and deceit. In his complaint the appellant stated his cause of action as follows:

'Plaintiff complaining against defendants alleges:

'I. That plaintiff is now and at all times herein mentioned was engaged as a real estate broker in the city of Seattle.

'II. That at all the dates and times herein mentioned the defendants were husband and wife, and as such constituted a community under the laws of the state of Washington.

'III. That during the month of November, 1910, the defendant George A. Moomaw, acting on behalf of said community, for the purpose of inducing plaintiff to procure the loan hereinafter described, introduced him to a woman whose true name is to plaintiff unknown, and then and there represented her to be Annie L. Knowles of Seattle, Wash., and also the owner of lot 10, block 3, Noah Fleckinger's Town Plat Cove addition to Seattle.

'IV. That at the time of said introduction said defendant further represented to plaintiff that said woman desired to borrow the sum of $1,500 secured by a note and mortgage upon said premises. And that in the event said loan were made she would pay to plaintiff and the defendants a broker's commission.

'V. That relying upon said introduction and the representations made by said defendant, plaintiff, on the 2d day of December, 1910, in the ordinary course of business, induced one of his clients, S. M. Obradovich, to loan said woman the sum of $1,500 upon her note and mortgage covering said premises, bearing interest at 7 per cent. per annum, which said note and mortgage were wrongfully made, executed, and delivered by said woman as Amie L. Knowles, and by reason of the representations of defendants to him made, plaintiff informed his said client that said woman was Annie L. Knowles.

'VI. That said defendants knew, or in the exercise of reasonable prudence and caution should have known, that said woman was an imposter, and that her true name was not Annie L. Knowles, but that she assumed the same for the purpose of cheating and defrauding this plaintiff.

'VII. That plaintiff did not know, and had no means of knowing, that said woman was not the person whom said defendant represented her to be, or that she was not the owner of said property and entitled to make, execute, and deliver said note and mortgage thereupon, but wholly relied, and was expected by defendants to rely, upon said introduction and representations of defendants as to her identity and authority to execute and deliver said note and mortgage.

'VIII. That it subsequently developed and is a matter of fact that said woman was not Annie L. Knowles, but was some other person, and has since been convicted and sentenced to prison for frauds similar to the one practiced by her upon plaintiff, by reason of which the note and mortgage given to S. M. Obradovich are worthless and plaintiff was compelled to pay him the amount thereof, to wit, the sum of $1,500, together with interest upon said sum from the 2d day of December, 1910, at the rate of 7 per cent. per annum.

'Wherefore plaintiff demands judgment against the defendants and each of them in the sum of $1,500, together with interest thereupon from the 2d day of December, 1910, until paid, and for costs and disbursements herein laid out and expended to be taxed.'

To the complaint a general demurrer was interposed by the respondents, which the trial court sustained. The appellant thereupon declined to plead further, and a judgment of dismissal was entered from which he appeals.

The essential elements necessary to constitute actionable fraud and deceit are in the main well settled. These elements are correctly set forth in 20 Cyc. 13. It is there said that: 'It must appear: (1) That the defendant made a material representation; (2) that it was false; (3) that when he made it he knew it was false, or made it recklessly, without any knowledge of its truth, and as a positive assertion; (4) that he made it with the intention that it should be acted upon by the plaintiff; (5) that the plaintiff acted in reliance upon it; and (6) that he thereby suffered an injury.'

Tested by these principles it seems to us clear that the complaint states a cause of action. The element of materiality is found in the allegation that the representation was made for the purpose of inducing the appellant to procure a loan for the woman introduced, and the allegation that the appellant did not know, and had no means of knowing, that the woman was not the person whom he represented her to be; the element of false representation, in the third, sixth, seventh, and eighth paragraphs of the complaint; the element of knowledge from the general tenor of the complaint, and from the sixth paragraph particularly; the element of intention, from the third paragraph, which avers that the introduction was made for the purpose of inducing the appellant to procure a loan for the woman introduced, and from the seventh paragraph, to the effect that the appellant wholly relied, and was expected by the defendants to rely, upon the introduction and representation of the respondents as to the woman's identity; the element of reliance on the representations, in the fifth and seventh paragraphs of the complaint; and the element of injury, from the allegation that he induced his client to make the loan and was afterwards compelled to repay the money loaned to his client. It may be true that the complaint is not as full as could be desired; and it may be true, also, that certain of its paragraphs are...