Small v. Dorsett

SoheNCK, J. Tbe first question wbicb arises on tbis appeal is: was there sufficient evidence of fraud to survive tbe demurrer thereto? Tbe answer to tbis question is in tbe affirmative. Tbe evidence is to tbe effect that tbe defendant, a banker of experience and a friend of tbe plaintiff, a woman of no business experience, in response to her request of him for advice as to depositing her money in a certain bank replied that be could invest her money for her so she would realize 6% therefor, that be could and would invest it so it would be “as good as gold,” that be would invest it in notes held by tbe bank and secured by mortgages on real estate worth much more than tbe amount of tbe notes, and that plaintiff would receive her interest regularly and could collect tbe principal at any time she might desire; as a result of these representations tbe plaintiff placed her money in tbe bands of tbe defendant for investment and defendant invested $5,415.00 in a note executed by one John L. Nix and wife, dated 2 December, 1924, due in six months, wbicb was more than four years past due, wbicb investment was not good as gold, and tbe real estate securing tbe note was of less value than tbe amount of tbe note, and tbe plaintiff was not paid her interest regularly and was unable to collect tbe principal when she tried so to do. Tbe evidence is further to tbe effect that at tbe time of tbe sale of tbis note to tbe plaintiff in 1929 tbe national depression was at its full depth, that real estate was of doubtful and uncertain value, and not advisable for investments. Tbe evidence tends to show further that tbe plaintiff relied upon tbe representations made to.her by tbe defendant, and acted upon them by allowing tbe investment to be made upon tbe security recommended by tbe defendant, and that she suffered by such reliance in that she lost heavily upon such investment. Tbe specific representations made by tbe defendant to tbe plaintiff wbicb tbe evidence tends to show were false, and known by tbe defendant to be false, were that tbe investment would be made in securities “as good as gold,” that tbe Nixes, makers of the note, were financially responsible, that tbe defendant would see to tbe payment of tbe taxes upon tbe property securing tbe note, that tbe Nixes could and would secure an HOLC loan to pay plaintiff tbe larger portion of tbe note and give her a second mortgage for tbe balance due thereon; that tbe property securing tbe note was of greater value than tbe amount of tbe note. Stacy, C. J., in Stone v. Milling Co., 192 N. C., 585, 135 S. E., 449, writes: “Tbe general conditions under wbicb factual misrepresentations may be made tbe basis of an action for deceit are stated in Pollock on Torts (12 Ed.), 283, as follows: “ 'To create a right of action for deceit there must be a statement made by tbe defendant, or for wbicb be is answerable as principal, and [760] with regard to that statement all the following conditions must concur: “ ‘(a) It is untrue in fact. “ ‘(b) The person making the statement, or the person responsible for it, either knows it to be untrue, or is culpably ignorant (that is, recklessly and consciously ignorant) whether it be true or not. “ ‘(c) It is made to the intent that the plaintiff shall act upon it, or in a manner apparently fitted to induce him to act upon it. “ ‘(d) The plaintiff does act in reliance on the statement in the manner contemplated or manifestly probable, and thereby suffers damage.’ “This formula has been approved by us in a number of decisions: Corley Co. v. Griggs, ante, 171; Simpson v. Tobacco Growers, 190 N. C., 603; Hollingsworth v. Supreme Council, 175 N. C., p. 635; Whitehurst v. Ins. Co., 149 N. C., 273.” C. S., 441 (9), reads: “For,relief on the ground of fraud . . .; the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud. . . .” Therefore, the second question which arises is: was there sufficient evidence that the plaintiff did not make discovery of the facts constituting the fraud of the defendant until the three years next preceding the institution of this suit on 21 October, 1942, to be submitted to the jury on an issue relating to the three year statute of limitations pleaded by the defendant? The answer is in the affirmative. In the first place, the evidence discloses that the relationship, both business and social, existing between the plaintiff and defendant, were such that the plaintiff was justified in having implicit confidence in the defendant — she was a woman 65 years of age without business experience; he was a younger man with wide business experience; they had been close associates, neighbors and friends in the years past. Therefore, when she made inquiries of the defendant as to the collection of the interest or a portion of the principal of the note, and was assured by the defendant that the investment was safe, and the security ample, she was thrown off her guard and led away from the discovery of the actual facts as they existed until she was informed in 1942 of the sale of the property under tax suits instituted in 1937. The evidence tends to show that she was lulled to sleep by the blandishments of the defendant, in whom she placed absolute trust. “The parties were not at arm’s length in reference to these representations and did not have equal opportunities of informing themselves.” May v. Loomis, 140 N. C., 350 (356), 52 S. E., 728. “The law does not require a prudent man to deal with everyone as a rascal, and demand covenants to guard against the falsehood of every representation which may be made as to facts which constitute material inducements to a contract.” Griffin v. Lumber Co., 140 N. C., 514 (518), 53 S. E., 307. [761] Especially is this so when there exists a fiduciary relationship between the parties. Abbitt v. Gregory et al., 201 N. C., 577, 160 S. E., 896; Bolich v. Ins. Co., 206 N. C., 144, 173 S. E., 320. The contention advanced by the defendant that the statements made by him to the plaintiff were mere promissory statements and that the representations so made were mere opinions expressed and .were therefore not sufficient upon which to bottom an action in fraud is untenable. Bispham’s Equity (9 Ed.), sec. 211, is quoted with approval in McNair v. Finance Co., 191 N. C., 710 (717), 133 S. E., 85, as follows: “But if a promise is made with no intent to perform it, and merely with a fraudulent design to induce action under an erroneous belief, or if a representation amounts' to a statement of fact, although dependent upon future action, in either case there is ground for equitable relief.” There is evidence in the record from which the jury might well have inferred and found that the defendant never intended to perform his promise to see that the taxes on the real estate securing the note sold to the plaintiff would be paid, and that the necessary repairs would be made thereon, and that the loan would be handled in an efficient and business-like manner; and that such statements were made at the time of negotiating the loan and continued throughout the years from 1929 to 1942 to prevent any personal investigation by the plaintiff of the true status of the loan and its security. It is generally held that where there is concealment of fraud or continuing fraud, the statute of limitations does not bar a suit for relief on account of it, and thereby permit the statute which was designed to prevent fraud to become an instrument to perpetrate and perpetuate it. In Mash v. Tiller, 89 N. C., 423, it is written: “It (statute of limitations) ought not, therefore, to be so construed as to become an instrument to encourage fraud, if it admits of any other reasonable interpretation.” In Unitype Co. v. Ashcraft, 155 N. C., 63, 71 S. E., 61, it is said: “. . . though the declarations may be clothed in the form of opinions or estimates, when there is doubt as to whether they were intended and received as mere expressions of opinion or as statements of facts to be regarded as material, the question must be submitted to the jury.” In this case the plaintiff testified that she did not actually learn of the deceit of the defendant until 26 March, 1942, when she was first informed of the tax sales. She had constituted the defendant her agent to invest her money and relied implicitly upon him. The law applicable is well stated in 34 Amer. Jur., Limitation of Actions, par. 168, p. 135, as follows: “Where a confidential relationship exists between the parties, failure to discover the facts constituting fraud may be excused. In such a case, so long as the relationship continues unrepudiated, there is nothing to put the injured party on inquiry, and he cannot be said to [762] have failed to use due diligence in detecting the fraud. . . . Similarly, an agent, sued for fraud, cannot set up that the' principal should have suspected him.” It is apparent from the record that there is some evidence, more than a scintilla, that the plaintiff made no discovery of the facts constituting the fraud alleged prior to the three year period next preceding the institution of this action. The third'question here presented arises from the allegation of the defendant that the plaintiff has ratified the acts of the defendant and is thereby estopped to prosecute this action. This allegation, the burden of proof of which rests on the defendant, is not supported by such evidence as to justify the court in holding as a matter of’law that such estoppel existed,' and, in effect, directing a verdict in favor of the defendant. It is the contention of the defendant that since the evidence of the plaintiff tended to show that the plaintiff, after she discovered the fraud of the defendant in 1942, marked the note and deed of trust securing it “fully paid and satisfied” when the Nixes sold the real estate, the plaintiff released the security for the note and released the Nixes from further personal liability, and that such action on the part of the plaintiff was. in derogation of the defendant’s interest. The action of the plaintiff in marking the note and deed of trust paid and satisfied was taken so as to clear the title and permit the real estate to be sold and thereby enable the plaintiff to realize what she could out of the security. One of the remedies open to a person who has been defrauded is to ratify the contract and keep the consideration received and sue for damages occasioned by the fraud, Fields v. Brown, 160 N. C., 295, 76 S. E., 8; Buick Co. v. Rhodes, 215 N. C., 595, 2 S. E. (2d), 699. This remedy the evidence tends to show the plaintiff sought in this case. If the real estate was sold for less than its value or if the defendant was injured by the release of the makers of the note and deed of trust, such damage as he suffered therefrom should be adjudicated upon an issue relating to the measure of damage. Certainly the evidence in the instant case, all of which was introduced by the plaintiff, does not justify the court holding as a matter of law that the estoppel plead by the defendant has been established. The burden of proving the estoppel was upon the defendant. The plaintiff, after learning of the fraud of the defendant, could ratify the contract, keep what she received and institute suit against the defendant for such damage as she suffered by reason of such fraud. Her ratification of the contract constituted no bar to her claim for damages on account of the fraud perpetrated upon her, but is in substantiation thereof. Buick Co. v. Rhodes, supra. Thus the plaintiff could give away the Nix note, sell it for whatever she could get for it, or do whatsoever she pleased with it, since it was hers, so likewise she [763] ■could release tbe security tberefor, and the only complaint that the •defendant could be heard to make was that the note, with its security, was worth something and that the plaintiff gave away this value or released it for less than its worth, and thereby increased the liability of the defendant. This question arises, however, only on the issue of damages — and not estoppel. The judgment of the Superior Court is Eeversed.