Stauffer v. Hulwick
| Decision Date | 02 November 1911 |
| Docket Number | No. 21,962.,21,962. |
| Citation | 176 Ind. 410,96 N.E. 154 |
| Parties | STAUFFER v. HULWICK. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, La Grange County; James S. Dodge, Judge.
Action by Mary Hulwick against Harlan A. Stauffer. From a judgment for plaintiff on demurrer to the complaint, defendant appeals. Affirmed.
Transferred from Appellate Court under Acts 1901, c. 259 (Burns' Ann. St. 1908, § 1405).
Deahl & Deahl and John W. Hanan, for appellant. L. W. Vail and Merritt & Duff, for appellee.
This appeal is from a judgment in favor of Mary Hulwick, appellee, who filed her complaint in the circuit court, against appellant, for damages for alleged fraudulent representations.
The judgment was on the amended second paragraph of appellee's complaint, which alleged that in May, 1904, appellant was, and for several years prior thereto had been, engaged in the practice of law at the bar of the Elkhart circuit court, and during all of that time was also engaged in buying and selling real estate and lending money for others. That appellant represented to appellee that one Hopkins desired to procure from her a loan of $600, to be secured by a mortgage on 20 acres of land situated in Elkhart county, near the city of Goshen; that appellant, to induce appellee to make the loan, stated that the land “was good land, and was of ample value to secure the repayment of such loan.” The appellee had no means of ascertaining the facts, and believed the statements of appellant, and, relying thereon, delivered to appellant $600, with which to make the loan to Hopkins, and received and accepted the note of Hopkins for the loan, secured by a mortgage on the 20 acres.
It is further alleged that when the representations were made, and when appellee parted with her money, the facts were that the land was not good, but was in fact mostly marsh land and under water, and could not be reached by a highway, and was not farming land, and was not of ample value to secure the proposed loan, and in fact was not of sufficient value to pay the costs and expenses of a foreclosure of the mortgage, and had no value whatever as security for the loan. Hopkins was insolvent, and never repaid the loan, and appellee lost the $600.
It is further alleged that appellant knew when he made the above representations about the quality and value of the land that they were false, and knew all the facts to be as above stated, and knowingly made such false representations of quality and value with the fraudulent intent and purpose of inducing appellee to make the loan, and by means thereof did deceive appellee and induce her to part with her money.
The lower court overruled a demurrer, for want of facts, to the above-mentioned paragraph of complaint, and this ruling is assailed by appellant as erroneous.
[1][2] It is claimed by counsel for appellant that the complaint is insufficient, under Burns' Stat. 1908, § 7468, because the alleged fraudulent representations were not in writing. The statute is as follows: “No action shall be maintained to charge any person by reason of any representation made conncerning the character, conduct, credit, ability, trade or dealings of any other person, unless such representation be made in writing and signed by the party to be charged thereby, or by some person thereunto by him legally authorized.” We are of the opinion that the statute does not apply to the alleged facts of this case. No representation was made concerning the character, credit, conduct, ability, trade, or dealings of Hopkins. The statementscomplained of were representations of the quality and value of the land. An investment in a real estate mortgage was contemplated, and only such a one as would be amply secured by the value of the land mortgaged, regardless of the character, conduct, ability, or dealings of the person who was to mortgage the land as security for the loan. The object of this statute was to prevent fraud, and not to shield the perpetrators thereof. Cook v. Churchman (1885) 104 Ind. 141, 3 N. E. 759;Hodgin v. Bryant, 114 Ind. 401, 16 N. E. 815;Coulter v. Clark, 160 Ind. 311, 66 N. E. 739;Grover v. Cavanagh, 40 Ind. App. 340, 82 N. E. 104.
[3] In states where Lord Tenterden's act has been substantially adopted, as in Indiana, the tendency of court decisio...
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