195 Iowa 655 | Iowa | 1923
This appeal involves the correctness of the ruling of the trial court in directing a verdict for the plaintiff, who, as indorsee stated a cause of action against the defendant, as maker of a certain promissory note,-in the sum of $2,500. Defendant in answer denied the material allegations contained
The defendant then took the burden of proof to establish the fraud pleaded in his answer. Unless the essential elements of the fraud pleaded were established by the defendant the plaintiff was not obligated under the provisions of the statute to assume the burden to sustain the allegations in its reply.
The primary errors relied upon for a reversal involve (1) the rulings of the court on the motions of the plaintiff to strike certain allegations contained in the answer and in the first amended and substituted answer of the defendant and (2) the sufficiency of the proof offered by the defendant to sustain his allegations of fraud.
The first proposition suggests no difficulty of solution. The second amended and substituted answer was filed presumably in conformity to the rulings of the court on plaintiff’s motion to strike certain matters from the answers previously filed. It must be said that the issues embodied in the second amended and substituted answer to plaintiff’s petition are the only ones tendered by the defendant in this case. The several assignments of error based
We now turn to the second point on this appeal. Did the defendant establish the fraud pleaded? It may be stated that the allegations of fraud per se are sufficient to constitute a d§fense as a matter of pleading. Pleadings are not Pro°f- We must therefore critically study the record to determine whether the plea has been sustained by the evidence.
We deem it unnecessary to incumber this record with the numerous allegations of fraud or the evidence offered in support thereof. Fraud pleaded as a defense in an action to recover on a note has the same essential ingredients as fraud in any other action, and the proof must conform to these essentials. The representations must be material, false, and refer to an existing or past fact. The representations must be made by a person knowing them to be false or made under such circumstances that knowledge of their falsity is imputed to him. They must be made by the representer with the intent that the other party will act upon them, and he must act thereon to his loss or damage.
The record discloses no evidence of the falsity of the alleged representations upon which fraud is predicated, except the testimony of one witness as to the value of the stock which was agreed to be sold to the defendant and for which the note in suit was executed and delivered impart consideration thereof. This evidence was on motion of the plaintiff stricken by the trial court. The essence of the objection to the question and to the answer which was stricken involves both the competency of the witness and the testimony.
It appears that one Miller was called as a witness to testify as to the value of the corporation stock which the defendant was
The testimony bearing on the question of value in the instant case is mere opinion or conclusion. It was not the best evidence of which the case was susceptible. The witness himself did not qualify as a competent witness to testify on the matter of value. For these reasons the trial court was not in error in sustaining the objections and the motion of plaintiff in this particular.
Another difficulty in the evidence lies in the fact that the falsity of none of the alleged fraudulent representations was established, nor is there any competent proof that the persons who are claimed to have made the representations knew them to be untrue, if in fact false.