Wall v. Graham

GARDNER, J. (1) Action of deceit by appellee against appellant. Demurrer to count 2 was overruled, by the court, and this action constitutes one of the assignments of error. There are omissions of certain words in some of the averments of said count (as, for instance, in the second sentence the failure to allege that the defendant made representations therein referred to), and there are also words used evidently by mistake,, or else they are clerical errors made in copying the rec — 399 — ord, as in the concluding part of said count it is alleged that the defendant did not have any cow, etc., whereas from an examination of the record it would he presumed that the pleader intended to allege this of the tenant, Smith. However, we merely call attention to these deficiencies as disclosed in this record, and, overlooking the same, we are still of the opinion that the complaint is insufficient, and the demurrer should have been sustained. It is not sufficient that the fraudulent representations of a material fact be alleged, but it must also be shown that thereby the plaintiff acted to his injury. In Einstein, Hirsch & Co. v. Marshall, 58 Ala. 153, 29 Am. Rep. 729, it is said, quoting an old authority: “Fraud, without damage, or damage, without fraud, gives no cause of action; but, where these two do occur, there an action lieth.” And in King v. White, 119 Ala. 429, 24 South. 710, the expression is repeated that: “Where fraud and damage unite, a right of action is given to the person injured.” In Alden v. Wright, 47 Minn. 225, 49 N. W. 767, it is said: “Deceit and injury must-concur. * * * Damage is of the essence of the action of deceit; an essential element to the right of action, and not merely a consequence flowing from it.” See, also, section 2468, Code 1907. In 20 Cyc. 102, we find the following: “The declaration or complaint must allege that the plaintiff sustained damage by reason of fraud, and should show that the relation of cause and effect exists between the fraud and the damage alleged.” The authorities cited in the note fully sustain the text. In a New Jersey case reported in Northwestern Mut. Life Ins. Co. v. Breautigam, 69 N. J. Law, 89, — 400 — 54 Atl. 228, the court said: “In Byard v. Holmes, 34 N. J. Law, 296, it was held that in an a.ction of this character the plaintiff must show with reasonable certainty in his declaration; not only what the fraud was by which he has been injured, hut also its connection with the alleged damage, so that it may appear judicially to the court that the fraud and the damage sustained to each other the relation of cause and effect, or at least that the one might have resulted * * * from the other.” See, also, Robinson v. S. R. T. Ry. Co., 100 App. Div. 214, 91 N. Y. Supp. 909; Ide v. Gray, 11 Vt. 615. (2) One of the assignments of demurrer takes the point that no. causal, connection is shown in. the complaint between the-representations made' and the damage suffered,. W&: think -this assignment well taken. The alleged false representations related solely to the financial condition, of one: Tom. Smith, a tenant of defendant, and who was on the note:with him. The said Smith’s connection with the plaintiff is nowhere disclosed, no contractual relations between them being-shown; and, indeed, how the false representations as to Smith could have . resulted in damage to. the plaintiff is left entirely, to conjecture. In short, the count fails to show that the fraud and the damage alleged sustained to each other the relation of cause and effect, or-that the one might have resulted directly - from the other; thus omitting one of the essential elements of- the cause of action. (3) As to the alleged false representations, we construe the complaint as averring a false statement as to the financial standing or condition of said Tom Smith, as a matter of fact, and not as a matter of opinion, and the assignments of demurrer taking this point were without merit. — 20 Cyc. 17. In Tuscaloosa Coun — 401 — ty v. Foster, 132 Ala. 392, 31 South. 587, it was said: “If doubtful in any case whether the statements are as to facts, as distinguished from expressions of opinion, the question should be for the jury.” See, also, Moses v. Katzenberger, 84 Ala. 95, 4 South. 237, and in 20 Cyc. 18: “An expression of opinion may be so blended with statements of fact as to become itself a statement of fact.” (4) We find no error in the refusal of the written charges requested by defendant. One of them seems to be rested upon the idea of a waiver of the fraud by the plaintiff, but we find nothing in the record justifying the giving of this charge, as there is no conduct shown on the part of plaintiff indicating an intention of a waiver. The contract was an executed one; the defendant had been released from his obligation to Crew, who, as an innocent third party, had accepted the binding obligation of the plaintiff. — Thweatt v. McLeod, 56 Ala. 375; 20 Cyc. 92, 93; Kerr on Fraud and Mistake, 330. (5) We construe the evidence, as we did the complaint, as showing the representations to be as a matter of fact; that is, as to what property was owned by Smith and his financial condition. The defendant offered no proof, and the charge predicated upon the question as to the mere expression of the opinion of defendant may be considered as abstract. Indeed, were it otherwise, the charge would be misleading, as even the expression of an opinion is held to be actionable if shown to be knowingly false, made with the intention to deceive, and to have been accepted and relied on. — Moses v. Katzenberger, supra; Tuscaloosa County v. Foster, supra. (6) We are of the opinion that sufficient evidence was offered by the plaintiff to submit to the jury the — 402 — question of the falsity of the alleged representations made, and that charge B, requiring proof by the plaintiff of the amount of indebtedness of Smith, etc., was properly refused. The question of false representations related to the alleged fraud of defendant, and was capable of proof by facts and circumstances, as was here done. Prom the summons in the justice’s court, appearing as a part of the record in this case, it is shown that the same was isued and filed on October 30, 1912, and we find nothing to- indicate that the cause of action was barred by the statute of limitation of one year.- — -Sections 4853 and 4652, Code 1907. See, also, section 4852. As shown by the authorities cited, the question of damages is considered as of the essence of the case. Injury to the plaintiff must be shown. No more appears in this record on this question than that the plaintiff paid to one Cosper the note, said Cosper having acquired the same, and charged it to the plaintiff’s account, paying the same with cotton. Counsel for the appellee is of the opinion, it seems, that the evidence shows the death and insolvency of Smith, and that the sum paid by the plaintiff was a total loss to him. If so, counsel is resting upon a misapprehension of the record; for no-such testimony appears. In this state of the proof as it appears in this record it seems that there is no room for the application of the doctrine of error without injury in the action of the court in holding the count not subject to the demurrer. Indeed, it may be questioned whether the mere proof that plaintiff paid the note, without more, was sufficient to afford a reasonable inference by the jury of loss and damage, as is required in cases of this character. This, however, we need not determine, as it clearly appears from brief of counsel for appellee to have been a mere matter of omission — 403 — from the record, and the purposes of another trial are subserved by directing attention thereto. For the error indicated, the judgment of the court below is reversed and the cause is remanded. Reversed and remanded. Anderson, C. J., and McClellan and Sayre, JJ., concur.