Wall v. Graham

• Decision Date: 15 April 1915
• Docket Number: 571
• Citation: 68 So. 298,192 Ala. 396
• Parties: WALL v. GRAHAM.
• Court: Alabama Supreme Court

68 So. 298

192 Ala. 396

WALL v. GRAHAM.

No. 571

Supreme Court of Alabama

April 15, 1915

Appeal from Circuit Court, Coosa County; S.L. Brewer, Judge.

Action by N.H. Graham against Alex Wall for damages for deceit. There was a judgment for plaintiff, and defendant appealed to the Court of Appeals under Acts 1911, p. 450, § 6, and it transferred the cause to the Supreme Court. Reversed and remanded.

Count 2 is as follows:

Claiming $99 as damages for that defendant and one Tom Smith were indebted to one R.H. Crew in the sum of about $90, in the fall of 1911, and said Smith is a tenant of said Wall and was unable to pay defendant said amount. Plaintiff avers that after Tom Smith paid him (defendant) all that said Smith owed him for the year 1911, supplies, advances, etc., the said Smith would have left at least 50 bushels of corn and a cow, which defendant said was worth $25. Plaintiff avers that said representations were false, and made for the purpose of defrauding plaintiff and relieving defendant of paying the amount to said Crew, and plaintiff avers he relied on what defendant said, and as a proximate result of defendant's said false and fraudulent statements plaintiff assumed said indebtedness to Crew, and has paid same, and thereby relieved defendant of said indebtedness, and plaintiff avers that defendant did not have any cow, nor more than 2 bushels of corn, when defendant got his claim stayed against said Smith and for the proximate cause of said false and fraudulent statement plaintiff has been damaged in the sum sued for.

The following are the charges refused to defendant:

Even if you believe from the evidence that Wall misrepresented the financial condition to Smith, still you could not find a verdict against Wall if you should be reasonably satisfied from the evidence that Graham agreed to pay the debt due Crew by Wall and Smith for the purpose of getting Smith as his tenant, and immediately found out Smith's true financial condition, and speculated on whether or not he would profit by the transaction until October 30, 1912, and that he never complained of the alleged fraud, and never repudiated the transaction until about 12 months, he will be held to have waived the fraud, if any.

(B) The burden is on plaintiff, Graham, to prove to the reasonable satisfaction of the jury from the evidence the amount of indebtedness Smith owed at the time Wall made the alleged representations to Graham, and that Smith did not make enough to pay same, and have a cow and 50 bushels of corn left.

(C) If you are reasonably satisfied from the evidence that Wall did no more than to express his opinion as to how much Smith would have after paying his debt, then you must find for defendant.

Riddle Ellis & Riddle, of Goodwater, for appellant.

John A Darden, of Goodwater, for appellee.

GARDNER J.

Action of deceit by appellee against appellant. Demurrer to count 2 was overruled by the court, and this action constitutes one of the assignments of error. There are omissions of certain words in some of the averments of said count (as, for instance, in the second sentence the failure to allege that the defendant made representations therein referred to), and there are also words used evidently by mistake, or else they are clerical errors made in copying the record, as in the concluding part of said count it is alleged that the defendant did not have any cow, etc., whereas from an examination of the record it would be presumed that the pleader intended to allege this of the tenant, Smith. However, we merely call attention to these deficiencies as disclosed in this record, and, overlooking the same, we are still of the opinion that the complaint is insufficient, and the demurrer should have been sustained. It is not sufficient that the fraudulent representations of a material fact be alleged, but it must also be shown that thereby the plaintiff acted to his injury.

In Einstein, Hirsch & Co. v. Marshall, 58 Ala. 153, 29 Am.Rep. 729, it is said, quoting an old authority:

"Fraud, without damage, or damage, without fraud, gives no cause of action; but, where these two do occur, there an action lieth."

And in King v. White, 119 Ala. 429, 24 So. 710, the expression is repeated that:

"Where fraud and damage unite, a right of action is given to the person injured."

In Alden v. Wright, 47 Minn. 225, 49 N.W. 767, it is said: "Deceit and injury must concur. *** Damage is of the essence of the action of deceit; an essential element to the right of action, and not merely a consequence flowing from it."

See, also, section 2468, Code 1907. In 20 Cyc. 102, we find the following:

"The declaration or complaint must allege that the plaintiff sustained damage by reason of fraud, and should show that the relation of cause and effect exists between the fraud and the damage alleged."

The authorities cited in the note fully sustain the text. In a New Jersey case reported in Northwestern Mut. Life Ins. Co. v. Breautigam, 69 N.J.Law, 89, 54 A. 228, the court said:

"In Byard v. Holmes, 34 N.J.Law, 296, it was held that in an action of this character the plaintiff must show with reasonable certainty in his declaration, not only what the fraud was by which he has been injured, but also its connection with the alleged damage, so that it may appear judicially to the court that the fraud and the damage sustained to each other the relation of cause and effect, or at least that the one might have resulted *** from the other."

See, also, Robinson v. S.R.T.Ry. Co., 100 A.D. 214, 91 N.Y.Supp. 909; Ide v. Gray, 11 Vt. 615.

One of the assignments of demurrer takes the point that no causal connection is shown in the complaint between the representations made and the damage suffered. We think this assignment well taken. The alleged false representations related solely to the financial...