Mizell v. Upchurch

Tayuor, C. J. (after stating the facts). — The court below erred in sustaining the defendant’s demurrer to the plaintiffs’ amended declaration, quoted in the foregoing-statement. In the case of Byard v. Holmes, 34 N. J. L. 296, one of the leading American cases of the class under discussion, we find the following succinct statement of the law as to the pleading and proof to be made in such cases: “To 452 maintain an action on the case for deceit, the plaintiff must allege, with reasonable certainty, and be prepared to prove (1) that the defendant made some representation to the plaintiff, meaning that he should act upon it; (2) that such representation was false, and that the defendant, when he made it knew it to be false; and (3') that the plaintiff, believing such representation to be true, acted upon it, and was thereby injured.” While the two counts in this declaration are unnecessarily prolix, yet we think that its allegations substantially comply with the requirements of the rule here announced. The following cases deal with the same subject generally, and with the defences proper to be made and with the various phases and effect of the proofs pro and con: Sims v. Eiland, 57 Miss. 607; Viele v. Goss, 49 Barb. (N. Y.) 96; Meyer v. Amidon, 23 Hun. 553; Clopton v. Cozart, 13 Smedes & M. (Miss.) 363; Bean v. Wells, 28 Barb. (N. Y.) 466; Boyd’s Ex. v. Browne, 6 Pa. St. 310; Nevada Bank of San Franscisco v. Portland Nat. Bank, 59 Fed. Rep. 338; Felix & Marston v. Shirey, 60 Mo. App. 621; Wheeler v. Baars, 33 Fla. 696, 15 South. Rep. 584; Watson v. Jones, 41 Fla. 241, 25 South. Rep. 678. We think that the allegations of the declaration made a case sufficient to be plead to, and the demurrer thereto should have been overruled. The judgment of the Circuit Court is reversed with directions to overrule the demurrer of the defendant to the plaintiffs’ amended declaration, and for such further proceedings as may be consonant with law and the rules of practice. The costs of the appellate proceedings to be taxed against the defendant in error.