Stewart v. Winter

• Decision Date: 21 August 1934
• Citation: 174 A. 456
• Parties: STEWART et al. v. WINTER.
• Court: Maine Supreme Court

174 A. 456

STEWART et al.

v. WINTER.

Supreme Judicial Court of Maine.

Aug. 21, 1934.

Exceptions from Superior Court, Androscoggin County.

Action by E. H. Stewart and another against Frank W. Winter. A verdict for defendant was directed, and plaintiffs bring exceptions.

Exceptions overruled.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, THAXTER; and HUDSON, JJ.

Pulsifer & Ludden, of Auburn, for plaintiffs.

Frank W. Winter and Elwyn H. Gamage, of Lewiston, for defendant.

HUDSON, Justice.

Action of deceit. On motion therefor, the justice presiding directed a verdict for the defendant. The case is before us on two exceptions, first to the direction of the verdict, and, second, to the ruling of the court in ordering all of the testimony of the plaintiffs' witness, Harold S. White, to be stricken from the record as inadmissible.

First Exception.

The action is founded on nine alleged false and fraudulent representations, all of which, excepting one, clearly did not pertain to any existing or preexisting fact, but were simply promises for performance of acts in the future. Promises of performance of future acts do not constitute actionable representation. Long v. Woodman, 58 Me. 53; Carter v. Orne, 112 Me. 367, 92 A. 289, 290; Albee v. La Roux, 122 Me. 273, 119 A. 626, 627.

The excepted representation as alleged in the declaration in the writ was "that he" (meaning the defendant) "had eighteen Guernsey cows coming down immediately with a Mr. Sargent, said cows to be placed in said barn." This representation may be said to consist of two statements, first, not clearly so expressed but probably intended as an existing fact that he then had the eighteen cows, and, second, that Sargent would "bring them down to the barn" on the farm of which the defendant gave the plaintiffs the lease; the latter statement constituting simply a promise for the performance of a future act. Then does the fact that the promise relied on, that the cows would be brought to the barn, is accompanied by a statement that he had them (giving the plaintiffs the benefit of such an interpretation), constitute a representation which would be a basis for an action of deceit? In the somewhat analogous case of Carter v. Orne, supra, our court indicated it would not, saying:

"The prior allegation as to the actual sale of 100 copies, if separated from the promise to sell the second lot also in Lewiston, is entirely unimportant and immaterial because if the defendant had actually sold the second lot in Lewiston as he agreed to do, no action could have been maintained by reason of any false representation in regard to the first lot, and no injury could have resulted to the plaintiff thereby. The only injury claimed by the plaintiff is because of the defendant's failure to perform his agreement, and for that injury the remedy sounds in contract and not in tort. Ross v. Reynolds, 112 Me. 223, 91 A. 952."

The evidence of both plaintiffs accords with and supports our interpretation of this representation, for they testified that before the lease was executed the defendant told them that he had the eighteen cows and that they would be taken to the farm. If at the time the words were spoken the defendant did not have the eighteen cows, but later had gotten them, and Sargent had brought and placed them in the barn at the stated time, no action of deceit could have been maintained against the defendant because the plaintiffs would not have been "misled to their damage" by the misrepresentation. Damage as a result is essential in actionable deceit. Patten v. Field, 108 Me. 299, 81 A. 77; Gilbert et al. v. Dodge, 130 Me. 417, and cases cited therein on page 419, 156 A. 891,

Lest we be misunderstood, however, it should be stated that we do not hold that such a false representation, even without damage, could not amount to fraud so as to justify the avoidance of a contract by the party defrauded.

"* * * It is universally held that the most sacred instrument may be avoided for fraud. * * * 'Fraud has been defined to be any cunning, deception, or artifice used to circumvent, cheat, or deceive another. Words and Phrases, vol. 3, 2943.'" Great Northern Manufacturing Co. v. Brown, 113 Me. 51, 53, 92 A. 993.

To constitute fraud, the false representation must actually be relied on. Duffy v. Metropolitan Life Ins. Co., 94 Me. 420, 47 A. 905; Hotchkiss v. Bon Air Coal & Iron Co., 108 Me. 34, 78 A. 1108; Erie City Iron Works v. Cushnoc Paper Co., 113 Me. 222, 93 A. 356; Patten v. Field, 108 Me. 299, 81 A. 77.

One in relying upon a false representation may be led to make a contract and yet be damaged, not as a result of reliance on the representation, but by reason of the breach of some promise in the contract separate and independent from the representation. The relation of cause and effect may not exist, or, if so, the effect may not be the proximate result of the fraud.

Fraud vitiates contracts. Warren v. Kimball, 59 Me. 264; Whittier v. Vose, 16 Me. 403, 406. A defrauded party has an election to affirm or rescind. Getchell v. Kirkby, 113 Me. 91, 94, 92 A. 1007. Still, unless damage results from the representation, while there may...