Simpson v. Tobacco Growers' Co-op. Ass'n

• Decision Date: 02 December 1925
• Docket Number: 369.
• Parties: SIMPSON v. TOBACCO GROWERS' CO-OP. ASS'N.
• Court: North Carolina Supreme Court

130 S.E. 507

190 N.C. 603

SIMPSON v. TOBACCO GROWERS' CO-OP. ASS'N.

No. 369.

Supreme Court of North Carolina

December 2, 1925

Appeal from Superior Court, Alleghany County; Cranmer, Judge.

Civil action by R. W. Simpson against the Tobacco Growers' Co-operative Association to rescind or cancel a contract between the parties for fraud alleged to have been practiced in its procurement. On denial of any fraud, and counterclaim to recover damages for a breach of the contract, there was a verdict and judgment in favor of defendant, plaintiff having submitted to voluntary nonsuit on his honor's intimation that the representations by defendant's agent were only promissory, and not sufficient to avoid the contract. Plaintiff appeals. No error.

Not presumed that plaintiff, submitting to nonsuit, would have made out case.

Folger & Folger, of Mt. Airy, for appellant.

Burgess & Joyner, of Raleigh, and Kenneth C. Royall, of Goldsboro for appellee.

STACY C.J.

The allegations upon which plaintiff seeks to avoid his contract with the defendant are almost identical with those set out in the case of Dunbar v. Tob. Gro. Ass'n (N. C.) 130 S.E. 505, this day decided. And in the instant suit the defendant's former agent, Porter Wall, testifies that he made the representations substantially as alleged.

There was error in holding that these representations were only promissory in character, but the plaintiff has failed to show any harm resulting to him therefrom. It is not made to appear anywhere on the record that the plaintiff relied on these representations to his hurt, or that he did not know of their falsity at the time he signed the contract; nor did he offer to show facts sufficient to make out a case of fraud.

The general conditions under which factual misrepresentations may be made the basis of an action for deceit are stated in Pollock on Torts (12th Ed.) 283, as follows:

"To create a right of action for deceit there must be a statement made by the defendant, or for which he is answerable as principal, and with regard to that statement all the following conditions must concur:

(a) It is untrue in fact.

(b) The person making the statement, or the person responsible for it, either knows it to be untrue, or is culpably ignorant (that is, recklessly and consciously ignorant) whether it be true or not.

(c) It is made to the intent that the plaintiff shall act upon it or in a manner apparently fitted to...