Griffin v. Canada

BROCK, Chief Judge. The plaintiffs assign error to the judge’s dismissal of their claim for fraud against the defendant. It is well established in this jurisdiction that in an action for fraud arising from an express representation, the plaintiff must establish six essential elements: (1) That defendant made a representation relating to some material past or existing fact; (2) that the representation was false; (3) that when he made it, defendant knew that the representation was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that defendant made the representation with the intention that it should be acted upon by pontiff; (5) that plaintiff reasonably relied upon the representation, and acted upon it; and (6) that plaintiff thereby suffered injury. Austin v. Tire Treads, Inc., 21 N.C. App. 737, 205 S.E. 2d 615 (1974). Although it is clear that the defendant signed the affidavit knowing it to be false, the record is devoid of any evidence of reliance by Mill End Carpet Outlet; the affidavit had no bearing on the sale of carpet to the defendant. Moreover, there is no evidence that either of the plaintiffs was injured by the false affidavit. Mill End Carpet Outlet was not injured by the alleged fraud of the defendant; rather, it was injured by the defendant’s failure to pay the invoice when submitted to defendant. Whether the Griffins could have been injured by the false affidavit poses a more difficult question. Had Mill End Carpet Outlet filed and perfected a lien for the carpet sold to defendant, and subsequently foreclosed in the event defendant failed to pay for the carpet, it may be that the Griffins would have been sufficiently injured to establish fraud. However, there is no evidence that such a lien was filed or that the Griffins are now confronted with this potential harm. Therefore, based on the record before us, we hold that the plaintiffs failed to produce sufficient evidence of reliance and injury to sustain a finding of fraud by the defendant. Affirmed. Judges Vaughn and Martin concur.