Western Townsite Co. v. Novotny

WHjITING, P. J. Plaintiff, under a written contract, sold defendant a town lot, upon which defendant made partial payment. Defendant being in default as to the balance of the purchase price, plaintiff brought this action seeking a judgment for such balance, and a decree giving it a vendor’s lien upon the lot securing such judgment, together with a foreclosure thereof. Defendant, admitting the contract and failure in payment, alleged by way of counterclaim that, when -said contract was entered into, plaintiff falsely and fraudulently, and' with intent to defraud defendant, represented to defendant that a certain railway company would, within one year from the date of said contract, build its railroad into the town wherein the lot in question was situate; that he relied upon such representation, and was thereby induced to enter into such contract; that such representation was false and was made by plaintiff for the purpose of inducing defendant to purchase such 'lot; that plaintiff, at the.time of -such representation, knew it was false; and 'that the said railroad company did not build a line into said town within such time. Defendant alleged damage in the exact amount of the balance claimed -by plaintiff. To this answer plaintiff demurred, upon the ground that the same did not state facts sufficient to constitute a defense to said action. The demurrer was sustained, and, defendant electing to stand upon such counterclaim, judgment in favor of plaintiff [568] was entered. It is from such judgment that defendant has appealed, and he assigns as error the ruling upon such demurrer. [1] Appellant concedes that ordinarily representations in the nature of promises or opinions, even if false, are not sufficient upon which to base an action for fraud, yet he contends that there are exceptions to this general rule, and that the facts alleged in his answer bring this case under such exceptions. • He has cited numerous authorities, every one of which we have examined, and there is not one that sustains his contention. It will be noted that the representation or promise related to what another corporation would do in the future. It did not even purport to be a representation of what such third party intended' to do, but a representation of what it would do, with no allegation to show that plaintiff had any control whatsoever over the actions of such railroad company. [2] The rule as to promissory statements is thus announced in 20 Cyc. 20: “As a general rule false representations upon which fraud, may be predicated must be of existing facts or facts which previously existed, and cannot consist of mere promises or conjectures as to future acts or events, although such promises are subsequently -broken, unless the promise includes a misrepresentation of existing facts or a statement as to some matter peculiarly within the speaker’s knowledge, and he makes the statement as a fact.” Certainly -the facts in this case do not bring it under such rule. If this building of the railroad was something which the plaintiff itself promised to do, or the allegations had been such as to show that the acts of the railroad corporation were within its control, then there would be some ground for appellant’s- contention,- as there is a line of decisions upholding the proposition that, where one fraudulently promises to do a thing which, at the time he makes the promise, he intended not to do, such representation may form the basis of an action for deceit; such right of action not being based upon the false representation of what was to occur, but upon a false representation as to a fac-t existing at the time of such representation — a false representation as to (he party’s present intent. 20 Cyc. 22. It is clear that the trial court did not err in sustaining the demurrer, and the judgment based thereon is affirmed.