220 P. 103 | Mont. | 1923
delivered the opinion of the court.
About August 19, 1920, the plaintiff sold and delivered to the defendants a twenty-five ton portable screening plant, complete, for the agreed price of $2,199.53. This action was brought to recover the purchase price, and the complaint follows the form usually employed in such cases. The answer admits 'all the material allegations of the complaint, and then sets forth four affirmative defenses. Issues were joined by reply and the cause tried, resulting in a verdict for the defendants. From the judgment entered thereon, plaintiff appealed.
1. There is not any merit in the contention made that the court erred in permitting defendants to open and close the case. The defendants had the affirmative of every issue raised by the pleadings, and the burden rested upon them to produce their evidence first. (Secs. 9349 and 10616, Rev. Codes 1921.) Their general denial of the legal conclusion contained in the complaint “that the said purchase price of $2,199.53 is now long past due and owing from defendants to the plaintiff” did not raise an issue of fact.
2. The principal contention made is that the answer does not state facts sufficient to constitute a defense or counterclaim. Upon the trial the first and third defenses were abandoned, and we may disregard the fourth, since it is a mere repetition of the second defense, except that the second includes a counterclaim for the amount paid by defendants for freight from Aurora, Illinois, to Finch, Montana.
Stripped of the great mass of superfluous words, the following allegations, in substance, are to be found in the second
In stating the elements of actionable fraud predicated upon false representations, the authorities do not always employ the same terms. Local statutes are responsible for the variations to some extent, but, speaking generally, it will be found upon analysis that there is singular unanimity of views. In 26 C. J. 1062, it is said that the elements are (1) a representa
In the case of Butte Hardware Co. v. Knox, 28 Mont. 111, 72 Pac. 301, where the defendant relied upon false representations of the seller to defeat the plaintiff’s right to recover the purchase price of a machine, this court announced the rule that the answer must disclose with reasonable certainty the following facts: (a) That certain representations were made by the seller; (b) which the purchaser had a right to rely upon; (c) that the representations were false; (d) that the purchaser believed them to be true; (e) that he relied upon them; (f) was induced by them to make the purchase; and (g) in consequence thereof was injured. The doctrine of that case has 'been approved repeatedly, and has never been departed from in this jurisdiction, though the rule has not been stated in precisely the same terms on every occasion.
Measuring the pleading before us by that standard, we observe (a) that it is alleged directly that Petrie made the representations set forth above. It is contended by plaintiff, however, that assuming the representations were made as alleged, they do not furnish a foundation upon which actionable fraud may be predicated. It is the general rule that to constitute actionable fraud the misrepresentation must relate to an existing fact or a fact which has existed, thereby excluding mere expressions of opinion. (Buhler v. Loftus, 53 Mont. 546, 165 Pac. 601.) An exception to the rule is illusated in Como Orchard Land Co. v. Markham, 54 Mont. 438, 1 Pac. 274.
The representation that the machine had capacity to screen and elevate from 350 to 400 cubic yards of gravel per day was likewise a representation of fact. In principle there cannot be any distinction between that statement and a statement that an engine will develop eight horse-power, that a car has a carrying capacity of 40,000 pounds, or a tank a capacity of 1,000 gallons. One is just as susceptible to demonstration as any of the others.
But assuming that the capacity of the machine was not actually known to Petrie, and might have been a proper subject upon which he could have expressed an opinion with immunity to his principal within the rule above, it does not follow that defendants have not stated as case of actionable fraud in view of the relative situations o? the parties as disclosed by the answer. In 2 Pomeroy’s Equity Jurisprudence, section 878, it is said: “Whenever a party states a matter which might otherwise be only an opinion, and does not state it as the mere expression of his own opinion, but affirms it as an existing fact material to the transaction, so that the other party may reasonably treat it as a fact, and rely and act upon it as such, then the statement clearly becomes an affirmation of fact within the. meaning of the general rule.” This language is peculiarly applicable to this case, where the parties were not dealing upon equal terms, but where Petrie had, or was supposed to have, means of information not equally open to the defendants. (Grim v. Byrd, 32 Gratt. (Va.) 293; 26 C. J. 1085.)
Ob) It is not alleged specifically that the defendants had a right to rely upon the representations, and the pleading would not have been aided by including such an allegation. The rule announced in Butte Hardware Co. v. Knox, above, does not go further than to require that the enumerated elements be made to appear with reasonable certainty from the pleading considered in its entirety. Whenever it is made to appear that the statements of the seller form a part of, or are essentially connected with, the substance of the transaction as distinguished from mere expressions of opinion, commendation or dealer’s talk, and concern matters which from their nature or situation may be assumed to be within the knowledge of the seller, then it is made to appear that the purchaser had a right to rely upon them. (2 Pomeroy’s Equity Jurisprudence, sec. 891.)
It appears from the answer that the representations made by Petrie related to the character and capacity of the machine in question — elements known by him to be essential to qualify the machine to meet the needs of these defendants; that he represented that he had knowledge of and skill and experience in the selection of road surfacing machinery for work similar to that upon which the defendants were engaged,
(e) It is alleged that the representations were not true, and that Petrie knew that they were not true when he made them.
(d, e) While it is not alleged directly that defendants be- lieved the representations to be true, it is alleged that they relied upon them, and this is sufficient. (Spencer v. Hersam, 31 Mont. 120, 77 Pac. 418.)
(f) It is alleged in the answer that defendants required the machine for a particular purpose; that Petrie knew the purpose for which it was intended, and with that knowledge he made the representations for the sole purpose of inducing the defendants to purchase the machine; that defendants did not have an opportunity to examine the machine in advance of the purchase; that they relied upon Petrie’s knowledge, skill and experience and upon the representations made by him in purchasing the machine, and that the machine was altogether worthless for the purpose for which it was purchased. This, answer reaches the limit to which any pleading may go and still be sustained; but we think it is a necessary inference from the foregoing allegations that, judging by the ordinary experience of mankind, the defendants would not in all reasonable probability have purchased the machine but for the representations made by Petrie, and this is deemed to be a fair test as to whether they were induced to make the purchase by reason of the representations. (2 Pomeroy’s Equity Jurisprudence, sec. 890.)
(g) If defendants made out a paper case of actual fraud, their answer states a counterclaim for the amount paid by them for freight upon the machine.
Section 9164, Revised Codes of 1921, provides: “In the construction of a pleading, for the purpose of determining
3. In their brief counsel for plaintiff assign as error the giving of Instructions 9, 10, 11 and 12; but the instructions are not set out as required by subdivision b, section 3, Rule X of the Rules of this court (59 Mont, xliv, 202 Pac. x), and since the alleged errors are not argued in the brief, they are deemed to be waived.- (Anderson v. Northern Pac. Ry. Co., 34 Mont. 181, 85 Pac. 884.)
4. It would not serve any useful purpose to review the evidence at length. There is a sharp conflict upon most of the important questions presented, but that conflict was resolved in favor of defendants. In passing we may observe that it is fairly apparent from the record that defendants’ case was aided materially by the testimony of Petrie, a witness for the plaintiff. There are some facts and circumstances disclosed by the defendants’ case which, presented in cold print, it would seem ought to have influenced the jury to reach a different verdict, but they are not of such character that this court can say that the verdict is not supported by a preponderance of the evidence.
The judgment is affirmed.
Affirmed.