Gray v. Edmonds

DeviN, J. The defendants’ demurrer ore tenus to the complaint cannot be sustained. Sufficient facts are alleged to constitute a cause of action for relief on the ground of fraud. The defendants’ motion for judgment of nonsuit was properly denied. Considering the plaintiffs’ evidence in the light most favorable for them, it is apparent that it was sufficient to carry the case to the jury on the *683 issue of actionable fraud. Whitehurst v. Ins. Co., 149 N.C. 273, 62 S.E. 1067; Petty v. Ins. Co., 210 N.C. 500, 187 S.E. 816; Ward v. Heath, 222 N.C. 470, 24 S.E. 2d 5; Atkinson v. Charlotte Builders, ante, 67, 59 S.E. 2d 1. The defendants bottom their defense on the principle that the purchaser of property seeking redress on account of loss sustained by reliance upon a false representation of a material fact made by the seller may not be heard to complain if the parties were on equal terms and he had knowledge of the facts or means of information readily available and failed to make use of his knowledge or information, unless prevented by the seller. Harding v. Ins. Co., 218 N.C. 129, 10 S.E. 2d 599; Peyton v. Griffin, 195 N.C. 685, 143 S.E. 525. But the rule is also well established that one to whom a positive and definite representation has been made is entitled to rely on such representation if the representation is of a character to induce action by a person of ordinary prudence, and is reasonably relied upon. 23 A.J. 970, Restatement Torts, secs. 537, 540. According to plaintiffs’ evidence here the amount of rentals collectible was a material inducement to the purchase of an apartment house for investment, and the representations as to what had been collected over a period and as to the character and permanency of the tenants occupying it presented matters of fact within the personal knowledge of the defendants, and about which the plaintiffs had no means of accurate information, and upon which plaintiffs justifiably relied. Mills v. Mills, 230 N.C. 286, 52 S.E. 2d 915; Haywood v. Morton, 209 N.C. 235, 183 S.E. 280; Sanders v. Mayo, 186 N.C. 108, 118 S.E. 910; Currie v. Malloy, 185 N.C. 206, 116 S.E. 564; Stewart v. Realty Co., 159 N.C. 230, 74 S.E. 736; Walsh v. Hall, 66 N.C. 233. The evidence introduced by plaintiffs was sufficient to present issues for the jury to determine whether the representations as alleged were made, and, if so, whether they were of such character and made under such circumstances as were calculated to impose upon or deceive a person of ordinary prudence and whether they were reasonably relied upon. Sanders v. Mayo, supra. Defendants noted exceptions to the rulings of the court in the admission of testimony, but these are without merit. Defendants also noted exception to portions of the judge’s charge to the jury, but considering the charge as a whole, we perceive no substantial error of which defendants can justly complain. In the trial we find No error.