58 Me. 49 | Me. | 1870
This is an action on the case for deceit. The defendant has filed a special demurrer to the declaration, which has been joined. The only inquiry arising is whether it sets forth any cause of action.
When stripped of all inculpatory phraseology, the declaration alleges the following facts: that on the 6th day of March, 1868, the defendant, and one George W. Reed, induced the plaintiff to convey to them certain real estate, described in the writ, by lending to him (the plaintiff) two hundred and thirty-six dollars, and by promising to give him a bond to reconvey the property in two years, upon the payment of said sum and interest; that after obtaining
To entitle a party to maintain an action for deceit by means of false representations, he must, among other things, show that the defendant made false and fraudulent assertions, in regard to some fact or facts material to the, transaction in which he was defrauded, by means of which he was induced to enter into it. The misrepresentation must relate to alleged facts or to the condition of things as then existent. It is not every misrepresentation, relating to the subject-matter of the contract, which will render it void or enable the aggrieved party to maintain his action for deceit. It must be as to matters of fact, substantially affecting his interests, not as to matters of opinion, judgment, probability, -or expectation. Hazard v. Irwin, 18 Pick. 95. An assertion respecting them is not an assertion as to any existent fact. The opinion may be erroneous; the judgment may be unsound; the expected contingency may never happen; the expectation may fail. An action of tort, for deceit in the sale of property, does not lie for false and fraudulent representations concerning profits that may be made from it in the future. Pedrick v. Porter, 5 Allen 324. An action for deceit in the sale of real estate cannot be sustained by proof of fraudulent misrepresentations as to the price paid by the vendor. Hemmer v. Cooper, 8 Allen, 334.
So in criminal law, to sustain an indictment for cheating by false pretences, there must be direct and positive assertion as to some existing matter of fact, by which the victim is induced to part with his money or property. A .false representation, promissory in its natare, as to pay money or do some other act, has never been held to be the foundation of a criminal charge. Ranney v. The People, 22
Here the defendant, when or after he obtained his deed, promised “ to make, execute, and deliver a good and sufficient bond,” to reconvey, upon certain conditions, the land conveyed to him and Reed, which upon request he refused to do. Here is no false representation or concealment of an existent fact. Yet this is the gist of the plaintiff’s "complaint, that a promise 'made has not been performed. Had it been performed, the plaintiff had no case.
Here is a promise to do some future act; but whether it be to pay money or give a bond is immaterial. If the promise had been to pay a sum of money instead of giving a bond, no action for deceit could have been maintained, though the money was not paid at the stipulated time. This case in no respect differs from a broken promise to pay for goods sold. The goods are delivered upon the expectation that the promise to pay will be performed. The deed was given upon the expectation that the bond would be delivered in accordance "with the promise of the grantee.
The declaration sets forth a promise to deliver a certain bond as therein described. It does not state whether it is in writing or not. There is no special plea denying it to be in writing. Lawrence v. Chase, 54 Maine, 196. If the promise was in writing, it was for a sufficient consideration, and the plaintiff may maintain an action thereon.
If not in writing it would be void by the statute of frauds. Lawrence v. Chase, 54 Maine, 196. But a verbal promise within the statute is no false representation. It is a promise, for the violation of which the law fails to provide a remedy, in case of its non-performance. In Fisher v. New York C.P., 18 Wend. 608, the facts were somewhat similar to those in the case at bar. The plaintiff below leased certain premises to the defendant, aird promised to
Exceptions overruled.
