Hill v. . Snider

Winborne, J. Counsel for appellant, in brief filed in this Court, states that: “At the hearing the defendant demurred ore tenus to one cause of action on the ground that the complaint does not state facts *439 sufficient to constitute a cause of action, and in the .other to the jurisdiction of the court. His Honor sustained the demurrer and signed a judgment dismissing the action in which he called the first cause of action second, and the second the first.” Considering the rulings of the court as set forth in judgment below, in the light of the pleadings, it is patent that the ruling with respect to failure to state facts sufficient to constitute a cause of action relates to allegations of fraud termed by the court “first alleged cause of action,” and that as to lack of jurisdiction, relates to those bearing on breach of warranty referred to as “second alleged cause of action.” These questions then arise as determinative of this appeal: (1) If the action be in tort for deceit or actionable fraud and false warranty, are the allegations of the complaint sufficient to constitute a cause of action? (2) If not, and the action be on contract for breach of warranty, are the allegations sufficient to state a cause of action which is within the jurisdiction of the Superior Court? We hold that the answer to each is “No.” 1. “The essential elements of actionable fraud or deceit are the representation, its falsity, scienter, deception, and injury. The representation must be definite and specific; it must be materially false; it must be made with knowledge of its falsity or in culpable ignorance of its truth; it must be made with fraudulent intent; it must'be reasonably relied upon by the other party; and he must be deceived and caused to suffer loss.” Adams, J., in Electric Co. v. Morrison, 194 N. C., 316, 139 S. E., 455. See, also, Berwer v. Ins. Co., 214 N. C., 554, 200 S. E., 1, and cases there cited. If the present action be in tort, there is no allegation that the alleged false representation was made with intent to deceive the plaintiff. This is an essential element of actionable fraud. Stafford v. Newsom, 31 N. C., 507; Colt v. Kimball, 190 N. C., 169, 129 S. E., 406; Stone v. Milling Co., 192 N. C., 585, 135 S. E., 449; Ebbs v. Trust Co., 199 N. C., 242, 151 S. E., 263. In Stone v. Milling Co., supra, reference is made to the case of Farrar v. Alston, 12 N. C., 69, where “a complaint which failed to allege that the fraud charged against defendant was intended to injure plaintiff, was held defective.” The Court further said: “A complaint which contains no allegation of a fraudulent intent, or facts from which it may reasonably be inferred, fails to state a cause of action for deceit, and such defect may be taken advantage of by demurrer,” citing authority. In case of warranty, the plaintiff m^y sue in tort for deceit, adding a count for false warranty. In such event the scienter is material. But if the plaintiff sue in contract for breach of warranty growing out of *440 tbe same state of facts, tbe scienter is not material. Ashe v. Gray, 88 N. C., 190; S. c., 90 N. C., 137; Long v. Fields, 104 N. C., 221, 10 S. E., 253; Robertson v. Halton, 156 N. C., 215, 72 S. E., 316; 37 L. R. A. (N. S.), 298. 2. If, on tbe other band, tbe theory of tbe present action be in contract for breach of warranty, tbe sum demanded, exclusive of tbe item of $100.00 claimed for feeding tbe mare, is less than two hundred dollars and, hence, is within tbe exclusive original jurisdiction of justice of peace. C. S., 1473; Sewing Machine Co. v. Burger, 181 N. C., 241, 107 S. E., 14. Under tbe allegations in tbe complaint relative thereto, tbe amount claimed for feeding is manifestly not within tbe rule for admeasurement of damages in such eases, Lunn v. Shermer, 93 N. C., 164, and may not be taken into consideration in ascertaining tbe amount demanded for jurisdictional purposes. Tbe judgment below is Affirmed.