Thompson v. Koewing

[248] The opinion, of the court was delivered by Garisson, J. The statements of the defendant that the land covered by the $90,000 mortgage was worth $120,000 at a fail market value and would bring that sum at a fair sale in the market, may be regarded as mere expressions of opinion within the ease of Conlan v. Roemer, 23 Vroom 53; but the statement on which such expressions were based, viz., that the property had cost the sum of $120,000, was a statement of a fact as of the knowledge of the defendant, and hence was well pleaded, whether its falsity consisted in its untruth as a fact or in the untruth of the defendant’s affirmance of his knowledge of its truth as a fact. Cummings v. Cass, Id. 77. The averments that this statement was made to be acted upon by the plaintiff and that he did act upon it to his injury, in ignorance of its falsity, which was known to the defendant when he stated it to be true, constitute a good cause of action as against a demurrer. Byard v. Holmes, 5 Vroom 296. The contention as to the marital duress of Jessie E. Koewing cannot be raised. Upon the case constituted by the declaration and the demurrer thereto Jessie is not the wife of the other defendant. On demurrer, facts not averred to exist are non-existent; matters of mere recital in a subjoined contract cannot take the place of substantive averments in the pleading itself. Moreover, Jessie made no representations either in or out of the presence of the other defendant; the allegation is that she was the principal and the other defendant her agent' who, in her interest and with her connivance, made the false representation. The cases, therefore, of Hildreth v. Camp, 12 Vroom 306, and Emmons v. Stevane, 44 Id. 349; 48 Id. 570, have no application. A rule may be entered by the plaintiff overruling the demurrer.