McKay v. Anheuser-Busch, Inc.

The opinion of the Court was delivered by Circuit Judge Wm. H. Grimbaee, Acting Associate Justice. This appeal is from an order of Plonorable E. C. Dennis, Circuit Judge, refusing to strike out portions of an amended complaint, and refusing to strike out the entire amended complaint, on the grounds of alleged non-compliance with an order to make definite and certain; and overruling a demurrer to the amended complaint. After alleging that appellant is engaged in the manufacture and sale of beer, which is sold by it in the original kegs, and that respondent operates a retail beer parlor in the City of Charleston, the original complaint then alleged as follows : “Fourth: That each of said kegs was labeled and represented by the defendant to contain fifteen and one-half (15y2) gallons of beer, which representation was false and known by the defendant to be false, and made for the purpose of deceiving the plaintiff. “Fifth: That, acting in reliance on said representation, the falsity of which was unknown to plaintiff, from April, 1934, to April, 1938, the plaintiff purchased about eight hundred thirty-two (832) kegs of ‘Budweiser’ beer * * * for sale in his business known as the ‘Rathskeller,’ and each of said kegs was labeled by the defendant and represented to the plaintiff as containing fifteen and one-half (15 J4) gallons of beer. *338 “Sixth: That, upon information and belief, and by actual tests made, the plaintiff ascertained that the said eight hundred thirty-two (832) kegs of beer sold to him as containing fifteen and one-half (15j4) gallons each did not contain that quantity, but contained considerably less, the shortage averaging about four (4) gallons of beer per keg. “Seventh: That by reason of the said mislabeling and misrepresentation and fraud of the defendant, resulting in said shortage, the plaintiff sustained a loss of about Three ($3.00) Dollars per keg on eight hundred thirty-two (832) kegs of beer, and was thereby cheated and defrauded, all to his damage in the sum of Three Thousand ($3,000.00) Dollars.” Upon motion of defendant, Honorable G. B. Greene, Circuit Judge, ordered plaintiff to make this complaint more •definite in the following particulars : 1. By setting forth in the fifth paragraph the date of the purchases and the amount of the purchases and the number of kegs purchased on each occasion. 2. By setting forth in the sixth and seventh paragraphs the date of each purchase, the number of kegs purchased, and the amount of shortage alleged as to each keg. Pursuant to this order plaintiff served his amended complaint in which he set forth the fourth, fifth, sixth and seventh paragraphs as follows: “Fourth: That each of said kegs was labeled and represented by the defendant to contain fifteen and one-half (15j4) gallons of beer, which representation was false and known by the defendant to be false, and made for the purpose of deceiving the plaintiff. “Fifth: That, acting in reliance on said representation, the falsity of which was unknown to plaintiff, from about July, 1934, to about April, 1938, the plaintiff purchased a large number of kegs of Budweiser beer, as shown on the annexed schedule marked ‘Exhibit A,’ through the defendant’s agent * * * for sale in his business known as the ‘Rathskeller,’ and each of said kegs was labeled by the de *339 fendant and represented to the plaintiff as containing fifteen and one-half (15)4) gallons of beer. “Sixth: That, upon information and belief, and by actual tests made, the plaintiff ascertained that the said kegs of beer sold to him as containing fifteen and one-half (15)4) gallons each did not contain that quantity, but contained considerably less, the shortage averaging about two and seven-tenths (2.7) gallons of beer per keg. “Seventh: That by reason of the said mislabeling and misrepresentation and fraud of the defendant, resulting in said shortage, the plaintiff sustained a loss of about Two and 9/100 ($2.09) Dollars per keg on said kegs of beer, and was thereby cheated and defrauded, all to his damage in the sum of Three Thousand ($3,000.00) Dollars.” Attached to this amended complaint was a schedule, marked as “Exhibit A,” setting forth the date, amount, purchase price, and alleged shortage of each purchase of beer relied upon by plaintiff. It shows that the unit of purchase was a half barrel, the price of each half barrel was twelve ($12.00) dollars, that the alleged shortage as to each half barrel was two and 7/10 (2.7) gallons, and that five hundred and fourteen (514) half barrels were purchased between July 1, 1934, and April 30, 1938. Thereupon defendant moved before Honorable E. C. Dennis, presiding Judge, for an order striking out the words “averaging about” in the fifth line of the sixth paragraph, striking out the whole sixth paragraph, striking out the word “about” in the third line of the seventh paragraph, striking out the entire seventh paragraph, and dismissing plaintiff’s amended complaint, all on the ground of failure on'the part of plaintiff to comply with the order of Judge. Greene to make the original complaint more definite and certain. Judge Dennis, after hearing the motion, issued his order refusing it on the ground that the amended complaint was in substantial compliance with Judge Greene’s order to make more definite and certain. The defendant now appeals from this order of Judge Dennis. *340 A pleading is required made more definite and certain in order to relieve the adversary from some disadvantage, either in- the preparation of his own pleading or in the preparation by way of witnesses and proof necessary to meet the issues at the time of trial. A party to a cause who has been ordered to make his pleading more .definite and certain is required to show good faith, and to exercise substantial compliance with the order to the extent of his ability. We are of the opinion that respondent, in obedience to the order of Judge Greene, has met these requirements. Appellant’s first five exceptions must therefore be overruled. Appellant further charges error in the refusal of Judge Dennis to sustain its demurrer to the amended complaint. The defendant demurred to the amended complaint on the ground that it does not state a cause of action, because: “Plaintiff in the amended complaint alleges a continuing shortage of two and seven-tenths (2.7) gallons which was discovered as to each half barrel or keg of beer purchased at the time that the said beer was used, and that the plaintiff by continuing his purchases and accepting and retaining the kegs which the plaintiff knew were short, waived any right to hold the defendant liable for the said shortages, which were well known to the plaintiff. “That the amended complaint shows on its face that the plaintiff was not misled as to the contents of the kegs of beer, and that he cannot be heard to complain that he was misled as to a matter that was within his knowledge at the time that the purchases were made, and waived any claim for shortage by the acceptance of the kegs and the continuing purchase of kegs which he knew turned out to be short, all in the same identical amount.” Judge Dennis overruled this .demurrer, being of the opinion that the amended complaint-sufficiently states a cause of action for actionable fraud. With this ruling we are in accord. *341 To constitute actionable fraud there must appear: (-1) a representation; (2) its falsity; (3) its materiality; (4) the author’s knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted upon by the person and in the manner reasonably contemplated; (6) the other party’s ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; and (9) his consequent and proximate injury thereby. It is our opinion that the amended complaint contains allegations sufficient to state a cause of action for actionable fraud. It is ordered that the appeal herein be dismissed. Messrs. Associate Justices Fishburne and StukEs concur. Mr. Chief Justice Boni-iam and Mr. Associate Justice Baker dissent.