Smith v. Johnson
Decision Date | 04 April 1929 |
Docket Number | 5135 |
Citation | 47 Idaho 468,276 P. 320 |
Court | Idaho Supreme Court |
Parties | JOHN SMITH and J. CLARK ESTES, Copartners Doing Business Under the Firm Name and Style of WM. R. SMITH & SONS, Respondents, v. S. R. JOHNSON, Appellant |
FRAUD-SCIENTER-EVIDENCE-PLEADING DAMAGES BY FRAUD.
1. Sale of sheep located without state by commission agent to purchaser within state constituted an interstate transaction and did not require compliance with provisions of Laws 1921 chap. 212, requiring filing of certificate of fictitious NAME under which seller was doing business.
2. Fraud is never presumed, but it must be alleged and proved by clear and convincing evidence.
3. Purchaser of lambs entering into written contract, only after making independent investigation as to weight of lambs, was in no position to claim fraud in the transaction because of misrepresentation of sellers as to weight, in that purchaser having opportunity of securing means of information will be presumed to have relied on his own judgment.
4. In order to show damage from fraud, purchaser must show that property obtained was of less value than price paid therefor.
APPEAL from the District Court of the Eleventh Judicial District for Minidoka County. Hon. Wm. A. Babcock, Judge.
Action to recover commission on sale of sheep. Judgment for plaintiffs. Affirmed.
Judgment affirmed. Costs to respondents. Petition for rehearing denied.
Harmon E. Hosier and Walters, Parry & Thoman, for Appellant.
Plaintiff operating under a fictitious name was doing business in the state of Idaho and cannot maintain this action for the reason that it had not alleged and proved that it had filed a certificate of its trade name and its real owners. (1921 Sess. Laws, chap. 212; Cashin v. Pliter 168 Mich. 386, Ann. Cas. 1913C, 697, 134 N.W. 482.)
Merely because one to whom fraudulent representations had been made also makes a partial investigation himself, does not relieve the one making the fraudulent representations from the legal consequence of his fraud. (Tooker v. Alston, 159 F. 599, 86 C. C. A. 425, 16 L. R. A., N. S., 818; Meland v. Youngberg, 124 Minn. 446, Ann. Cas. 1915B, 775; 145 N.W. 167; Barron v. Myers, 146 Mich. 510, 109 N.W. 862.)
Chas. A. North and Ray Agee, for Respondents.
This was clearly a transaction in interstate commerce and the statute does not apply to such transactions. (13 C. J., p. 581, note 62; 1921 Sess. Laws, chap. 212, p. 424, Pacific State Automotive Finance Corp. v. Addison, 45 Idaho 270, 261 P. 683; Portland C. L. Co. v. Hansen L. & F. Co., 43 Idaho 343, 251 P. 1051.)
To constitute remedial fraud, the misrepresentations must be made scienter, that is, either with knowledge of their falsity or in culpable ignorance of their truth. (Parker v. Herron, 30 Idaho 327, 164 P. 1013; Bumpas v. Stein, 18 Idaho 578, 111 P. 127; 26 C. J., p. 1105, par. 35; Hoagland v. Garrison, 32 Idaho 746, 188 P. 42; Johnson v. Holderman, 30 Idaho 691, 167 P. 1030; Breshears v. Callender, 23 Idaho 348, 131 P. 15.)
In order to constitute actionable fraud, the party claiming to be defrauded must plead and prove that the property purchased was worth less than he paid for it. (Frank v. Davis, 34 Idaho 678, 203 P. 287.)
Respondents instituted this action against appellant to recover $ 556.60, alleged to be due as a commission on the sale of a number of sheep to appellant. The cause was tried to the court and jury, and at the close of the evidence the court instructed the jury, on motion of respondents, to return a verdict in favor of respondents for the amount claimed. The appeal is from the judgment entered on the verdict so returned, appellant contending that in directing a verdict for respondents the trial court took from the jury questions of fact which appellant was entitled to have decided by a jury and not by the court.
Respondents are partners, engaged in buying and selling sheep on commission, with offices in Chicago, Omaha and Denver. Appellant resides at Rupert, and is also engaged in the business of buying and selling sheep. On August 15, 1923, an employee of appellant was in the Denver office of respondents and overheard a conversation regarding some 11,000 lambs which respondents had listed for sale. He wired this information to appellant who commenced negotiations with respondents for the purchase of the lambs. The negotiations were carried forward by telegraph and telephone conversations between appellant at Rupert and an agent of respondents at Denver, and culminated in a deal whereby appellant purchased the lambs at Dillon, Montana, upon an advance to the owners of $ 1 per head and an agreement with respondents to share a commission of 10 cents per head. There was some discussion in the negotiations had between appellant and respondents as to the weight of the lambs, appellant stating in a telegram to respondents that the parties to whom he expected to turn the lambs "want weight not over seventy-five pounds," and respondents advising him, "our party thinks lambs will weigh around seventy-five . . . . may weigh one pound more." The lambs were at Dillon, Montana, and appellant went there to complete the contract of purchase and take possession of the lambs. Appellant was still somewhat concerned as to the weight of the lambs when he went to Dillon, and discussed the matter with the party from whom they were purchased, having a provision put in the written contract that they were not to weigh over seventy-five or seventy-six pounds each. When the lambs were delivered they were found to average a fraction over eighty pounds per head. They were, however, accepted by appellant who later disposed of them at an advance over what he had paid for them.
The transaction was not such a one as required respondents to comply with the provisions of Sess. Laws 1921, chap. 212, p. 424, and comes within the rule announced in Pacific States A. F. Corp. v. Addison, 45 Idaho 270, 261 P. 683, as an interstate transaction.
The chief ground of resistance to respondents' claim was that the weight of the lambs was misrepresented to appellant. It is a rule well settled that fraud is...
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