Ware v. Estabrooks

Tyler, J. This case comes here upon a demurrer to the first and third counts in the declaration, the defendant con [93] tending that these counts do not contain the necessary averments to constitute a good declaration in tort. It is an elementary rule of pleading that every substantive fact which is necessary in law to the maintenance of the suit must be alleged. Gould’s PI., Ch. 3, ss. 2, 166. It is not sufficient to allege that a certain act was fraudulently and deceitfully committed, but such facts must be stated as will give it that character. A declaration in fraud cannot be sustained without appropriate facts being alleged to ground the action upon, showing that the plaintiff had been damnified by the defendant’s deceit or wrongful act. Ide v. Gray, 11 Vt. 615; Wright v. Bourdon, 50 Vt. 494; Sprague v. Fletcher, 67 Vt. 48. It is alleged in these counts that the plaintiff carried on the business of selling typewriters at St. Johnsbury, and that the defendant fraudulently contriving to purchase a typewriter of the plaintiff at agent’s price of seventy-five dollars, when the regular price was one hundred dollars, “fraudulently and deceitfully contriving, and craftily and subtly intending to deceive and defraud the plaintiff in this behalf, requested the plaintiff to send him on trial an Underwood typewriter at agent’s price, and then and there represented to the plaintiff that he, the defendant, knew of intending purchasers, and that if he were satisfied with such typewriter on trial, he would keep such typewriter at agent’s price and become the agent for such Underwood typewriter in St. Johnsbury.” It is alleged that the plaintiff confided in these representations and delivered a typewriter to the defendant for a five days’ trial, when, if the defendant were satisfied with it, he might if he desired purchase it at agent’s price and become an agent for its sale, otherwise to return it to the plaintiff. But it is not alleged wherein it was a fraud upon the plaintiff by which he was damnified that the defendant obtained the chat [94] tel at agent’s price, nor is there a denial that he intended to become such agent, nor is the representation that he knew of intending purchasers alleged to have been false. The plaintiff contends that these two counts, omitting unnecessary words, are good counts in trover. They do indeed allege a demand by the plaintiff and the defendant’s refusal to return the chattel, but there is no direct allegation of a conversion ; and a demand and refusal are only evidence of a conversion, and stating the mere evidence of a material fact is not sufficient, nor do a demand and refusal in the circumstances alleged constitute a conversion. The allegations are that the defendant took the chattel upon an undertaking to return it after five days’ trial, or retain it at agent’s price and become agent for its sale, otherwise to return it to the plaintiff; that after the expiration of the five days he did not accept it at agent’s price and become agent, and did not return it to the plaintiff although requested. These are allegations of agreements made by the defendant with the plaintiff and of a breach thereof. The second count is a good count in trover, and the first and third being in assumpsit, there is a misjoinder. Judgment reversed; demurrer sustained and cause remanded.