Stratton v. Rosenquist

• Decision Date: 09 June 1917
• Docket Number: 1915
• Citation: 163 N.W. 723,37 N.D. 116
• Court: North Dakota Supreme Court

163 N.W. 723

37 N.D. 116

EDGAR C. STRATTON v. N. T. ROSENQUIST

No. 1915

Supreme Court of North Dakota

June 9, 1917

From an order of the District Court of Williams County, Fisk, J.

Defendant appeals.

Dismissed.

Appeal dismissed.

Palmer Craven, & Burns, for appellant.

The action for fraud and deceit will not lie. There was a total failure of proof of these, upon the trial, and judgment notwithstanding the verdict should have been given. The question for the trial court was, not whether there was literally no evidence to sustain the charge of fraud and deceit, but whether there was any evidence that might reasonably satisfy the jury, and if such question is answered in the negative, the case should be withdrawn from the jury. 6 Enc. Ev. 50; Marshall-McCartney Co. v. Halloran, 15 N.D. 71, 106 N.W. 293; Nounnan v. Sutter County Land Co. 81 Cal. 1, 6 L.R.A. 219, 22 P. 515; 20 Cyc. 12, note 29; Humphrey v. Merriam, 32 Minn. 197, 20 N.W. 138.

Where the evidence clearly shows that the person charged with fraud had no knowledge of the matters to which his statements related, the representations are not false and fraudulent. Davidson v. Jordan, 47 Cal. 351, 7 Mor. Min. Rep 54; Krause v. Cook, 144 Mich. 365, 108 N.W. 81; Cole v. Smith, 26 Colo. 506, 58 P. 1086; Marsh v Falker, 40 N.Y. 562.

Where representations are merely the expression of belief or opinion, they do not amount to fraud and deceit. Oberlander v. Spiess, 45 N.Y. 175; Allison v Ward, 63 Mich. 128, 29 N.W. 528; Hatch v. Spooner, 37 N.Y.S. R. 151, 13 N.Y.S. 642; Levy v. Scott, 115 Cal. 39, 46 P. 892; Boles v. Aldridge, Tex. Civ. App. , 153 S.W. 373; Bumpas v. Stein, 18 Idaho 578, 111 P. 127; McLeod v. Johnson, 96 Me. 271, 52 A. 760; State, Cummings, Prosecutor, v. Cass, 52 N.J.L. 77, 18 A. 972; 20 Cyc. 31, subd. C.

Also statements made upon information or belief. 20 Cyc. 17, 51, subd. 2; Hutchinson v. Poyer, 78 Mich. 337, 44 N.W. 327.

Fraud must be proved by clear and convincing testimony. Jasper v. Hazen, 4 N.D. 1, 23 L.R.A. 58, 58 N.W. 454; Lockren v. Rustan, 9 N.D. 43, 81 N.W. 60; McGuin v. Lee, 10 N.D. 160, 86 N.W. 714; Anderson v. Anderson, 17 N.D. 275, 115 N.W. 836; Kenmore Hard Coal, Brick & Tile Co. v. Riley, 20 N.D. 182, 126 N.W. 241; Miller v. Smith, 20 N.D. 96, 126 N.W. 499; Englert v. Dale, 25 N.D. 587, 142 N.W. 169.

The statements must be inconsistent with an honest purpose. Droge Elevator Co. v. W. P. Brown Co. 172 Iowa 4, 151 N.W. 1048; Levy v. Scott, 115 Cal. 39, 46 P. 892; Graham v. Graham, 184 Mich. 638, 151 N.W. 596; Hatch v. Spooner, 37 N.Y.S. R. 151, 13 N.Y.S. 642; Hollister v. Loud, 2 Mich. 309; Pierce v. Pierce, 55 Mich. 629, 22 N.W. 81, 15 Mor. Min. Rep. 675; State Sav. Bank v. Emge, Iowa , 108 N.W. 530; Lane v. Parsons, 108 Iowa 241, 79 N.W. 61.

Recovery cannot be had for constructive fraud, under a complaint alleging actual fraud. Haynes v. McKee, 19 Misc. 511, 43 N.Y.S. 1126; Fowler v. Wood, 73 Kan. 511, 6 L.R.A.(N.S.) 162, 117 Am. St. Rep. 534, 85 P. 763; St. Louis v. Rutz, 138 U.S. 226, 34 L.Ed. 941, 11 S.Ct. 237.

William G. Owens and George H. Moellring, for respondent.

The motion for judgment should not have been granted, and the trial court committed no error in so holding, or in granting a new trial.

That the wrong theory of measure of damages was pursued by parties and court throughout the trial cannot be doubted, and on this account the instructions of the court were erroneous, and to correct these errors, a new trial was granted. Richmire v. Andrews & G. Elevator Co. 11 N.D. 453, 92 N.W. 819; Welch v. Northern P. R. Co. 14 N.D. 19, 103 N.W. 396; Meehan v. Great Northern R. Co. 13 N.D. 432, 101 N.W. 183; Nelson v. Grondahl, 12 N.D. 130, 96 N.W. 299; Pine Tree Lumber Co. v. Fargo, 12 N.D. 360, 96 N.W. 357; Houghton Implement Co. v. Vavrosky, 15 N.D. 308, 109 N.W. 1024; AEtna Indemnity Co. v. Schroeder, 12 N.D. 110, 95 N.W. 436; Kerr v. Anderson, 16 N.D. 36, 111 N.W. 614; Kirk v. Salt Lake City, 12 L.R.A.(N.S.) 1022, and note, 32 Utah 143, 89 P. 458.

Before a judgment notwithstanding the verdict can be ordered, it must reasonably appear that the defect in proof cannot be remedied if a new trial be granted. Welch v. Northern P. R. Co. 14 N.D. 19, 103 N.W. 396; Meehan v. Great Northern R. Co. 13 N.D. 432, 101 N.W. 183.

Any positive assertion in a manner not warranted by the information of the person making it, of that which is not true, even though he believes it to be true, or the suppression of that which is true and ought to be told, or the suggestion as a fact of that which is not true, or any other act or statement fitted to deceive, amounts to fraud. Comp. Laws 1913, § 5849; Knowlton v. Schultz, 6 N.D. 417, 71 N.W. 550; Whitbeck v. Sees, 10 S.D. 417, 73 N.W. 915; Liland v. Tweto, 19 N.D. 551, 125 N.W. 1032; Lunscheon v. Wocknitz, 21 S.D. 285, 111 N.W. 632; McCabe v. Desnoyers, 20 S.D. 581, 108 N.W. 341; Sallies v. Johnson, 85 Conn. 77, 81 A. 974, Ann. Cas. 1913A, 386; 20 Cyc. 27; Tappan v. Albany Brewing Co. 80 Cal. 570, 5 L.R.A. 428, 22 P. 257.

CHRISTIANSON, J. ROBINSON, J., concurring specially.

OPINION

CHRISTIANSON, J.

This is an action for damages alleged to have arisen out of a "land deal." The jury returned a verdict in favor of the plaintiff for $ 771.85. The defendant then made an alternative motion for judgment notwithstanding the verdict or for a new trial. The trial court refused to order judgment notwithstanding the verdict, but granted a new trial. The defendant appeals from such order.

Respondent contends that the order is not appealable, and after a careful consideration of this question we have arrived at the conclusion that this contention must be sustained. This court has repeatedly held that an order denying a motion for judgment notwithstanding the verdict is nonappealable. See Turner v. Crumpton, 25 N.D. 134, 141 N.W. 209; Houston v. Minneapolis, St. P. & S. Ste. M. R. Co., 25 N.D. 469, 46 L.R.A. (N.S.) 589, 141 N.W. 994, Ann. Cas. 1915C 529; Starke v. Wannemacher, 32 N.D. 617, 156 N.W. 494.

The order appealed from, so far as adverse to the defendant, merely denied the motion for judgment notwithstanding the verdict. That portion of the order was nonappealable. St. Anthony Falls Bank v. Graham, 67 Minn. 318, 69 N.W. 1077; Ripon Hardware Co. v. Haas, 141 Wis. 65, 69, 123 N.W. 659. See also Turner v. Crumpton; Houston v. Minneapolis, St. P. & S. Ste. M. R. Co.; and Starks v. Wannemacher, supra.

Appellant directs our attention to the decision of the Minnesota supreme court in Westacott v. Handley, 109 Minn. 452, 124 N.W. 226, wherein an order similar to the one involved in the case at bar is held to be appealable. That decision was based upon the Minnesota statute which reads as follows: "When, at the close of the testimony, any party to the action moves the court to direct a verdict in his favor, and such motion is denied, upon a subsequent motion that judgment be entered notwithstanding the verdict, the court shall grant the same if the moving party was entitled to such directed verdict. An order for judgment notwithstanding the verdict may also be made on a motion in the alternative form asking therefor, or, if the same be denied, for a new trial. If the motion for judgment notwithstanding the verdict be denied, the supreme court, on appeal from the judgment, may order judgment to be so entered, when it appears from the testimony that a verdict should have been so directed at the trial; and it may also so order, on appeal from the whole order denying such motion when made in the alternative form, whether a new trial was granted or denied by such order." Rev. Laws 1905, § 4362.

The statute of this state relative to motions for judgment notwithstanding the verdict reads as follows: "In all cases where, at the close of the testimony in the case tried, a motion is made by either party to the suit requesting the trial court to direct a verdict in favor of the party making such motion, which motion was denied, the trial court on motion made that judgment be entered notwithstanding the verdict, or on motion for a new trial, shall order judgment to be entered in favor of the party who was entitled to have such verdict directed in his or its favor; and the supreme court of the state on appeal from an order granting or denying a motion for a new trial in the action in which such motion was made, or upon a review of such order or on appeal from the judgment, may order and direct judgment to be entered in favor of the party who was entitled to have such verdict directed in his or its favor, whenever it shall appear from the testimony that the party was entitled to have such motion granted." Comp. Laws 1913, § 7643. It will be noticed that there is considerable difference between the Minnesota statute and our own statute on this subject.

And while it is true that the Minnesota supreme court, in the case cited, held an order similar to that here involved to be appealable, we are agreed that that rule should not be adopted under our statute and the former decisions of this court. In this connection it may be mentioned that the supreme court of Wisconsin has reached a conclusion diametrically opposite to that reached by the Minnesota court. See Ripon...