Brandom v. McCausland

AMIDON, District Judge (after stating the facts as above). New things are more elementary in the law than that a plaintiff who seeks to recover damages for deceit has the burden of proving by a preponderance of the evidence’ not only the false representations, hut the amount of damages which he suffered thereby. Ming v. Woolfolk, 116 U. S. 599, 602, 6 Sup. Ct. 489, 29 L. Ed. 740; Stratton’s Independence v. Dines, 135 Fed. 449, 68 C. C. A. 161. This the plaintiffs in the present case wholly failed to do. They neither showed the value of the cattle upon which they thought they were obtaining a first mortgage, the amount of prior mortgages, nor the value of the con [404] sideration with which they parted. The debt being an old one, and, so far as the evidence discloses, being unsecured, the mortgage set up in the complaint, even if it was on fictitious property, left the plaintiffs in no worse plight than they were at the time it was given. It is not even alleged in the complaint that they might have made their debt had it not been for this renewal; but, if such a claim had been put forward, it would not support an action for deceit., Bradley v. Fuller, 118 Mass. 239; Austin v. Barrows, 41 Conn. 287. Because the plaintiffs failed to show that they were damaged in fact, or the amount of their damages, the defendants’ motion at the close of the testimony for a directed verdict should have been granted. Again, the court in its charge used the following language: “If you find that the property was in existence, and not covered by other mortgages, and the defendant allowed the proceeds to be diverted to other channels, then that would be a fraud upon the plaintiffs, and they would be entitled to recover.” The defendants excepted to this portion of the charge. It was a clear departure from anything contained in the complaint, and therefore was an improper ground of recovery to submit to the jury. The plaintiffs in this case sought to,make out a cause of action for deceit for the purpose of saving their claim from being barred by proceedings in bankruptcy. In the pursuit of this theory they wholly disregarded the facts. The result is that their judgment is void, and must be set aside, and a new trial granted.