Sallies v. Johnson

• Decision Date: 19 December 1911
• Parties: SALLIES v. JOHNSON et ux.
• Court: Connecticut Supreme Court

81 A. 974

85 Conn. 77

SALLIES v. JOHNSON et ux.

Supreme Court of Errors of Connecticut.

December 19, 1911

Appeal from Superior Court, New Haven County; Ralph Wheeler, Judge.

Action by Milo J. Sallies against Carl A. Johnson and wife. From the judgment for defendants, plaintiff appeals. Reversed.

Talcott H. Russell and Charles T. McClure, for appellant.

John Elliott, for appellees.

WHEELER, J.

The complaint sets forth these facts:

The defendants owned the equipment, worth not more than $450, in a barber shop conducted by the defendant Carl A. Johnson at No. 63 Church street, in the city of New Haven, the good will of which was worth more than $800, and the plaintiff owned the equipment, worth $300, with the good will worth $300, of a barber shop conducted by him in Westville in the town of New Haven. The plaintiff possessed no other property, and was dependent entirely upon his earnings as a barber. The good will and business at No. 63 Church street was of no value if the defendant Carl A. Johnson continued to transact a barber business in close proximity. The defendants, knowing these facts, for the purpose of inducing the plaintiff to purchase the barber business at No. 63 Church street with its equipment, falsely and fraudulently represented to the plaintiff, with the intent to deceive him, that the said Carl A. Johnson was about to and would abandon the barber business in the city of New Haven, and would no longer transact said business within the limits of said city in consideration that the plaintiff would purchase said property at the price of $1,300, and transfer his property and good will of his business in Westville to be credited at $500.

The plaintiff, believing, and induced by, said statements entered into an agreement by which he agreed to pay defendants $1,300 for the property and good will of the business No. 63 Church street, and transferred the property and good will of his business in Westville to the defendants to be credited at a value of $500 on said $1,300, and agreed to pay the balance in monthly payments of $25, default in which was to give defendants the election to take possession of said property, and thereupon the interest of the plaintiff in the property ended. The plaintiff took possession of the barber business at No. 63 Church street and, shortly after the transfer, the defendant Carl A. Johnson, with the consent and approval of the other defendant, opened a barber shop almost directly opposite, and induced nearly all of the customers of plaintiff to refuse to do business with him, and to give their business to said Carl A. Johnson. As a result the good will of his business was destroyed, and he could not meet the installments under his agreement, and the defendants subsequently took possession of the property under the agreement, and the plaintiff lost the business.

The defendants interpret their demurrer to contain two grounds, upon which they now rely:

(1) " The representations alleged are not representations of past or present existing facts, but are mere expressions of intention, or predictions or promises as to future actions or conduct."

(2) " If in this state fraud can be predicated upon promises as to future conduct, the intention at the time the promises are made not to perform them is the gist of the fraud, and must be specifically and directly, and not inferentially, alleged, and the complaint fails to allege this element of the cause of action."

Accepting the defendants' interpretation of their demurrer, we are unable to hold that either of these grounds was well taken.

The defendants correctly state the general rule of law-misrepresentation, to be actionable, must relate to an existing or a past fact, and a promise to do an act in the future cannot be a fraudulent representation, because it cannot be an untrue representation at the time it is made. Barnes v. Starr, 64 Conn. 136, 156, 28 A. 980.

We think their interpretation of the complaint as comprising promises of future conduct merely is too restrictive, and neither in accord with the true legal construction nor with the popular construction of such allegations of misrepresentations. The representation that Carl A. Johnson " was about to and would abandon the barber business" involves two elements: First, the statement of a present condition " that he was about to abandon" ; and, second, a statement as to the future, that he would abandon. In ordinary grammatical construction " about" before an infinitive means, " on the point of" or " in the act of." It signifies present, and not future, action. The words " about to abandon" are synonymous with " intended now to abandon." These words may form the subject of an actionable misrepresentation.

To the general rule of law that misrepresentations must relate to an existing or a past fact there are exceptions, each one growing out of the need of preventing the successful perpetration of fraud. One of the exceptions under our law and one existing in many jurisdictions and denied in more is that the promise to do a future act coupled with a present intention not to fulfill the promise will constitute a fraudulent promise. When one promises another to do something in the future as a consideration or inducement to him to do something, he impliedly asserts a present intent to carry out his promise. Rogers v. Virginia C. C. Co., 149 F. 1 78 C. C. A. 615, 627. A promise to do an act in the future which is the medium of a deception, and which the promisor has no present intention to perform, will support an action of deceit. Ayres v. French, 41 Conn. 142, 154; Dowd v. Tucker, 41 Conn. 197, 204, 205; Barnes v. Starr, 64 Conn. 136, 154, 28 A. 980. The intention to deceive is a condition of mind, and, when it exists, is as much of a fact as a condition of the body. That...