Smith v. Vandiver

• Decision Date: 05 April 1929
• Docket Number: 12632.
• Citation: 147 S.E. 645,149 S.C. 540
• Parties: SMITH v. VANDIVER.
• Court: South Carolina Supreme Court

147 S.E. 645

149 S.C. 540

SMITH v. VANDIVER.

No. 12632.

Supreme Court of South Carolina

April 5, 1929

Appeal from Common Pleas Circuit Court of Anderson County; L. E Croft, Special Judge.

Action by Mrs. Jessie Dean Smith against E. P Vandiver. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed.

Allen & Doyle and Watkins & Prince, all of Anderson, for appellant.

Wolke & Miller, of Anderson, for respondent.

STABLER J.

This is an action for damages alleged to have been suffered by the plaintiff, a depositor of the People's Bank of Anderson as the result of fraudulent representations made to her by the defendant while president of the bank.

The defendant demurred to the complaint as follows: "That it appears upon the face of the complaint that the complaint does not state facts sufficient to constitute a cause of action, in that (1) there is no allegation therein that the alleged statements of the defendant as set out in paragraph 8 of the complaint were untrue when made; (2) there is no allegation therein that said statements at the time of their alleged utterance were known by the defendant to be untrue or that defendant was culpably ignorant of their truth or falsehood; (3) there is no allegation in the complaint of any intent to deceive or to defraud, and no fact therein alleged from which said intent can reasonably be inferred."

The court, in an order dated March 13, 1928, overruled the demurrer. From this order the defendant appeals and imputes error.

The sole question presented by the appeal is: Does the complaint, for the reasons set forth in the demurrer, fail to state a cause of action grounded upon fraud or deceit?

The rules with respect to pleading the falsity of representations and the scienter, in such actions, are well stated in 27 C.J. at page 33:

"It must be averred in a direct manner, or at least substantially, that the representations set out were false; and except where it is sought to base liability on representations true when made but false when acted upon, it must be averred that the representations were false when made."

"Except in those jurisdictions where a scienter is not an essential element of actionable fraud, it is necessary that a scienter be alleged. It is not always necessary, however, that knowledge of the falsity of the representations be alleged in so many words."

As to pleading intent, at page 34 it is said: "Except in those jurisdictions where an innocent misrepresentation may be actionable, a pleading setting up actual fraud must allege that the representations were made fraudulently: that is, it must aver that they were made with intent to deceive, or must allege facts from which such intent can be legitimately inferred. But it has been held that no particular form of words is necessary. An express averment of the intent is not required, but it is sufficient if the existence of the intent can be clearly inferred from the allegations. Thus if the declaration or complaint sufficiently avers a scienter and that defendant intended the representations to be acted upon by plaintiff, so that the intent to deceive can be legitimately inferred according to rules previously stated, it is sufficient."

See, also, 12 R. C. L. p. 421.

In Brookland Bank v. Martin, 105 S.C. 72, 89 S.E. 546, this court said: "A complaint for fraud, like an indictment for crime, ought to signalize first the intent, and then the words spoken, and the acts done to carry out the intent."

While the foregoing statement was not necessary to the decision of ...