Berwer v. Union Central Life Insurance

WiNBORN®, J. Conceding, but not deciding, that tbe plaintiffs are tbe real parties in interest and can maintain tbis action, C. S., 446, we are of opinion that tbe evidence offered by tbe plaintiffs is not sufficient to establish all of tbe essential elements of actionable fraud. Tbis is decisive of tbe case. Motion for judgment as of nonsuit was properly granted. “The essential elements of actionable fraud or deceit are tbe representation, its falsity, scienter, deception, and injury. Tbe 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 on by tbe other party; and be must be deceived and caused to suffer loss.” Adams, J., in Electric Co. v. Morrison, 194 N. C., 316, 139 S. E., 455; Gatlin v. Harrell, 108 N. C., 485, 13 S. E., 190; Cash Register Co. v. Townsend, 137 N. C., 652, 50 S. E., 306; May v. Loomis, 140 N. C., 350, 52 S. E., 728; Tarault v. Seip, 158 N. C., 363, 74 S. E., 3; Peyton v. Griffin, 195 N. C., 685, 143 S. E., 525; Plotkin v. Bond Co., 204 N. C., 508, 168 S. E., 820; Ghormley v. Hyatt, 208 N. C., 478, 181 S. E., 242; Petty v. Ins. Co., 210 N. C., 500, 187 S. E., 816. Tbe principle applies to contracts and sales of both real and personal property. May v. Loomis, supra; Tarault v. Seip, supra; Evans v. Davis, 186 N. C., 41, 118 S. E., 845. In tbe present case there is no evidence that Coburn made any representation, false or otherwise, as to tbe number of acres in tbe boundary. Nor is there evidence that tbe land bad not been surveyed and tbe lines and boundaries cheeked and plat made. While there is evidence that Coburn said that Mr. Pierce bad made a map, there is no evidence that tbis statement was not true, nor is there any evidence as to what that map, if 'made, showed with respect to tbe acreage or with reference to tbe timbered land. All tbe evidence shows that tbe boundary includes timbered land north of the Millican Branch, but there is lack of certainty as to tbe quantity of land and of tbe timber. Tbe statement of Coburn that there was just about enough timber there to finish paying for tbe land is. not only indefinite, but an expression of opinion, and is not regarded as fraudulent. In Cash Register Co. v. Townsend, supra, Brown, J., says: “. . . Commendatory expressions or exaggerated statements as to value or *558 prospects, or tbe like, as where a seller puffs up the value and quality of his goods or holds out flattering prospects of gain, are not regarded as fraudulent in law. It is the duty of the purchaser to investigate the values of such expressions of commendation. He cannot safely rely upon them. If he does, he cannot treat it as fraud, either for the purpose of maintaining an action of deceit or for the purpose of rescinding a contract at law or in equity. Saunders v. Hatterman, 24 N. C., 32, 14 A. & E. (2 Ed.), 34, and cases cited. Kerr on Fraud and Mistake, at page 83, says: ‘A misrepresentation to be material should be in respect of an ascertainable fact as distinguished from a mere matter of opinion. A representation which merely amounts to a statement of opinion goes for nothing, though it may not be true, for a man is not justified in placing reliance on it.’ ” For full discussion of the applicable principles to factual situations similar to those here involved, see the opinions in cases of Gatling v. Harrell, supra; Tarault v. Seip, supra; and Peyton v. Griffin, supra. It is pertinent to say also that there is of record a lack of sufficient evidence of agency to hold defendant liable for any representations of Coburn. Holding that there is no evidence of fraud, it is unnecessary to consider the exception to evidence. The judgment below is Affirmed. ClaeKsoN, J., dissents.