Lead Opinion
The appellant has made many assignments of error covering exceptions to the admission of evidence and to the instructions given to the jury. Most of them, but by no means all, are intended to protect the view taken by the plaintiff that the theory on which the case was tried was erroneous, and, therefore, led to numerous and persistent errors throughout the trial. The main objection to the trial, and the one which may be determinative of the controversy, is the refusal of the court to nonsuit the defendant’s cross action based on the allegedly false representations of plaintiff’s sales agent, whereby defendant was induced to purchase the machinery, the subject of the controversy; and the refusal to enter judgment for the plaintiff upon the pleadings and admissions of the defendant in his answer and upon the trial.
Our first inquiry, therefore, is whether these representations, conceding them to have been made, can be held to constitute actionable fraud.
While these representations, as alleged in the complaint and testified to by plaintiff, are called “representations, warranties, and guarantees,” (sic) — indicating how they appeared to complainant — the labels may not be of decisive importance; but it is important to distinguish between the legal effect of fraud in the inducement, which vitiates the contract, and a parol warranty, which would have to be set up by amendment or contradiction of the written instrument. Furst v. Merritt,
Without attempting to resolve the indecision manifest in defendant’s pleading and reflected throughout the trial, we examine the alleged representations in that light.
It has frequently been said, with reference, however, to the more general significance of the word, that there can be no all-embracing definition of “fraud” — but each case must be considered upon peculiar facts presented. 23 Am. Jur., Fraud and Deceit, sec. 2; Furst v. Merritt, supra. However, as the subject becomes more narrowly classified when we deal with particular acts alleged to be fraudulent, and more concrete rules may be applied, making the term more definitive in its content and meaning in the eyes of the law, and limiting its sufficiency as a basis of action or defense. As to positive representations constituting actionable fraud, the best known and most widely used definition of a false representation — and the one which we think comes closest to bedrock— requires it to be “a false representation of a subsisting fact.” Cash Register Co. v. Townsend,
It is true that even under such guidance, judicial precedents, hastily examined, appear to drag the subject back and forth across the line, on similar factual situations, according as a supposed sense of justice might require in each particular case, without much regard for the syllogism; and that is true in cases dealing with the sale of machinery or mechanical devices where dissatisfaction with the bargain so often develops. Harvester Co. v. Carter, supra; Pate v. Blades,
If contradiction may be found in some of these cases, it is not necessary that we follow those less inclined to protect, against parol evidence, the integrity of contracts which have been reduced to writing, and thus, in trying to prevent fraud on the one part, open an even wider door for its perpetration on the other.
Ordinarily, a mere statement of opinion cannot be held for fraud. The Court is. aware that there are exceptions to the rule and also cogni
There is throughout the judicial treatment of this subject a manifest attempt to follow the definition which we have given, and where the representations held for fraud are partially or wholly stated in the outward form of an opinion, they will be found to relate to some essential character, quality or capacity inherent in the machines sold, absolute in their nature and indistinguishable from factual statements. Machine Co. v. Feezer, supra; Machine Co. v. McKay, supra. "Without going into a dialectic discussion of what may be a fact and what may not be a fact, we are convinced the representations upon which the defendant relies stand too far away from factual misrepresentations to constitute actionable fraud. Harvester Co. v. Carter, supra; Cash Register Co. v. Townsend, supra. At most, they are mere comparisons of one kind of machinery with another, of purely relative import, much as if a trader said to a prospect: “My horse is better than the one you have, will do more work, and save you money.” In any other view, they are merely promissory statements which cannot be held for factual misrepresentations.
In principle the representation under review is more like that in Cash Register Co. v. Townsend, supra (approved and distinguished in Machine Co. v. Feezer, supra), as to which Judge Brown, speaking for the Court, said: “What has been called ‘promissory representations,’ looking to the future as to what the vendee can do with the property, how much he can make on it, and, in this case, how much he can save by the use of it, are on a par with false affirmations and opinions as to" the value of property, and do not generally constitute legal fraud”; citing Benjamin on Sales (7th Ed.), 483, et seq.; Gordon v. Parmele, 2 Allen (Mass.), 212; Long v. Woodman, 58 Me., 52, and cases there cited; and upon these authorities, observes: “. . . commendatory expressions or exaggerated statements as to value or prospects, or the like, as where a seller puffs up the value and quality of his goods or holds out flattering prospects of gain, are not regarded as fraudulent in law.” Such statements were held not to be misrepresentations of a “subsisting fact.”
Since we are of opinion that the representations attributed to Rader-macher cannot be held to constitute actionable fraud, it follows that defendant’s further defense,, based entirely upon such representations, cannot avail him. Upon the admissions of the defendant in the pleadings and upon the trial, plaintiff was entitled to the relief demanded in his complaint, and the trial court erred in refusing to sign the tendered judgment. The cause is remanded for judgment in accordance with this opinion.
Error and remanded.
Dissenting Opinion
dissenting: There' is nothing new in this case. The Court has heretofore tramped all over the same ground many times. See Whitehurst v. Ins. Co.,
The defenses alleged are breach of warranty and fraud. The first is not available to the defendant because of the stipulation in the contract. Harvester Co. v. Carter,
The allegations of fraud are to be read in the light of the circumstances and the situation of the parties. Small v. Dorsett,
For many years the defendant had operated a laundry and dry-cleaning business in Lumberton with machinery of old type and style. On 3 June, 1940, plaintiff’s agent, who said “he had been having lots of trouble” with the model used by the defendant, induced the defendant to exchange his old machinery for machinery of a later design and model, representing to the defendant that the later type and model machinery would “do better work, more economically and with less labor” than the machinery then used by the defendant in his business. Upon these representations, the defendant, who was not familiar with the machinery which plaintiff wished to sell, agreed to the exchange, and executed his notes for the difference in the trade. The new machinery was installed in defendant’s place of business and it was immediately discovered that the machines were not as represented. It took more labor to operate them, and even then they did not run satisfactorily. Plaintiff’s agent came to see about them. “He saw at that time that they would not operate,” and he sent a representative from the factory to fix them. The representative said he could not fix them without some parts from the factory, which he promised to send but they never came.
As compared with the old machines “they don’t turn out as good work, and they don’t turn out as much work, and it takes more people to operate them.” The witness explained in some detail wherein the machines were defective.
Plaintiff’s agent admitted the substance and purpose of the representations. He said: “I told Mr. Skinner that my Company had had some difficulty with the kind, of press that he then had in his place of business, but that my Company had remedied that and had built a new press
There is evidence that these representations were false. The jury has found they were fraudulently made. Are they sufficient in law to withstand motion for judgment on the pleadings? The trial court answered in the affirmative. He is supported by the pertinent authorities. Anno. 56 A. L. R., 25 and 113.
It will be noted that the measure of performance was what the old machinery would do. This is the standard which the plaintiff’s agent voluntarily selected for purpose of comparison. The quality of performance of the old machinery was known to both parties; that of the new was unknown to the defendant. The representations relate to measurable and ascertainable facts, not merely to the agent’s opinion of them.
The present case is controlled by the decision in Unitype Co. v. Ashcraft,
If these cases are to stand, the judgment below is correct.