Benolkin v. Guthrie

Mabsitall, J. It is too clear for argument that the order refusing to dismiss the action is not appealable. It did not prevent a judgment from which an appeal could be taken, — 557 — therefore does not satisfy the requirements of subd. 1, seo. 3069, Stats. 1898; and it is not claimed, and could not be, reasonably, that it satisfies any other provision of the law on the subject of appealable orders. "We have before us for consideration only the question of whether the complaint states a cause of action against defendant, though counsel have favored us with a lengthy argument to show, not only that the order which is not appealable, as indicated, is erroneous, but that two other orders, from which no appeal is taken, are also erroneous. Manifestly, we need not take further notice of that part of counsel’s brief. In the argument challenging the decision of the demurrer, we find that the claim that two causes of action were improperly united in the complaint has been abandoned. The first defect pointed out in support of the general demurrer is that the complaint shows that plaintiff did not do anything different from what she intended to do independent of the alleged wrongful conduct of defendant. That is predicated on an introductory allegation in the complaint to the effect that when respondent negotiated with appellant in respect to opening a millinery department in his store, she was ‘ seeking a desirable location for the purpose of conducting such an establishment to cater to the best trade in the city of Superior, wherein would be kept nothing but goods of the best grade and quality of everything in the millinery line.’ It can hardly be argued from that, reasonably, that plaintiff would have selected defendant’s store as a desirable location for her business had he not made the false representations charged against him, or that she would, had she not relied upon such false representations, have incurred the expense alleged. It seems that the complaint fairly shows that respondent established a millinery department in appellant’s store, choosing that as a favorable location therefor upon the faith of the alleged — 558 — false representations. True, sbe intended to start a millinery store with a first-class stock of ¿oods if she could find a favorable location, but she would not have cast her lot with defendant, as she alleges, except for his representations as to the kind of stock he purposed keeping and had in fact purchased, indicating that his store was to be of such a character as to draw to it customers who would desire the kind of goods she purposed keeping. The next suggestion is that the representations made were mere expressions of opinion by one as to the quality of his own property, hence not actionable under any circumstances. To that counsel cites to our attention cases where it has been held that the mere casual expression of an opinion, or the expression of any opinion, as to the value of property, or any other mere opinion, is not actionable. There is no doubt about that principle, but it does not apply to the allegations of the complaint before us. It is there alleged that defendant represented, as an existing fact, that he had purchased for his store a first-class stock of goods including the various articles of ladies’ wear of the best quality. It may reasonably be inferred from that allegation, and the one to the effect that plaintiff had no means of knowing whether such representation was true or false, that the goods purchased by appellant were not where respondent could have inspected them and determined for herself their quality. ' The alleged' false representations, under the circumstances, cannot be said to have been mere expressions of opinion. They were statements of facts material to the question of whether appellant’s store would be a desirable place for respondent to conduct a millinery business. There •is a wide distinction, ordinarily, between false representations of material facts, which, if made knowingly or without knowing whether they are true or false, for the purpose of inducing another to enter into a contract and incur expense, and which effect such purpose to the damage of such — 559 — •other, are 'actionable, and the mere expression of an opinion as to value or as to some other fact. The representations alleged in the complaint belong to the former class. That ■seems too clear to warrant spending further time discussing it. The uniform rule is that a statement as to the character, •or even the value, of property, where the same is at a distance, or so located that the person to whom they are made may reasonably rely thereon, for the purpose of inducing 'him to enter into a contract or incur expense or part with -anything of value, is the statement of a fact, not a mere expression of opinion. Horton v. Lee, 106 Wis. 439; Witherwax v. Riddle, 121 Ill. 140; Harris v. McMurray, 23 Ind. 9; McKnight v. Thompson, 39 Neb. 752; Henderson v. Henshall, 54 Fed. Rep. 320; Chrysler v. Canaday, 90 N. Y. 272; 1 Bigelow, Fraud, 496. The next objection to the complaint is that there is no allegation that respondent would have sold her stock had the representations complained of been true, or that the depreciation in the value of the stock was caused by the deceit alleged. 'There is an allegation in plain language that had it not been for the false representations plaintiff would not have pur•chased the stock of goods at all, and that by reason of the facts stated she suffered loss by depreciation to the extent -of $642.19. Those allegations together seem to plainly cover the infirmity claimed. They show that respondent would .not have placed herself in a position to suffer loss but for the ■deceit practiced upon her, and that she in fact suffered loss by depreciation of her property while trying to sell the same under the conditions to which defendant fraudulently induced her to subject herself. It is further said, in' effect, that there is no allegation that plaintiff was misled, not having 'an opportunity to see for herself the quality of the goods. On the contrary, there is .a plain allegation that plaintiff neither knew whether the — 560 — representations made to her were true or false, ñor bad an opportunity for discovering the truth. There are many other suggestions in the brief of counsel for appellant, why the complaint is insufficient, but none of them points out any substantial defect in the pleading which is found to exist on a careful reading thereof, applying thereto the liberal rules which the statute requires, in determining the intention of a pleader and the facts stated in the pleading, either expressly or by reasonable inference. A pleading cannot legitimately be subjected to'any technical or narrow reading or construction for the purpose of determining its sufficiency, nor can it be condemned because all the essential facts are not clearly alleged without resort to inference. The statute, sec. 2668, Stats. 1898, commands that, “ in the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties,” and conformably thereto it has often been decided that “ every reasonable intendment and presumption is to be made in favor of a pleading ” (Morse v. Gilman, 16 Wis. 504); and that, if the essential facts can be discovered, as alleged in the pleading to exist, either by express statement or reasonable inference, “ it must be held good though the allegations thereof be in form uncertain, defective, and incomplete ” (Flanders v. McVickar, 7 Wis. 372; Horn v. Ludington, 28 Wis. 81; Miller v. Bayer, 94 Wis. 123; Pfister v. Sentinel Co. 108 Wis. 572). Reading the complaint before us in the light of those rules, the defects claimed by counsel for appellant to exist cannot be discovered. We shall not take time to refer further in detail to the suggested defects. Those we have particularly referred to are a fair sample of the rest. The complaint sufficiently charges that the defendant made false representations to plaintiff in respect to material facts, to induce her to incur expense to establish a millinery department in his store; that she neither — 561 — knew nor had means of knowing whether such representations were false; that she relied upon them as being true, and was thereby caused to comply with defeúdant’s desire in respect to establishing a millinery department, and in so doing expended the sum of money stated in the complaint, and by reason thereof suffered the loss therein alleged. That makes a cause of action in plaintiff’s favor to recover damages. In sustaining the complaint we are -not called upon to approve of it as to form. The necessary substance to make a cause of action being discovered, the pleading must be held good though it contains unnecessary allegations and the essential allegations are not clearly and closely connected, nor the facts stated with that particularity, conciseness, and perspicuity characteristic of an experienced pleader. By the Gourt.— The order appealed from is af&rmed.