167 P. 992 | Okla. | 1916
The only question in this appeal whether or not the amended and supplemental petition filed by plaintiff in error, plaintiff below, states a cause of action. The lower court sustained a demurrer thereto. The plaintiff elected to stand upon said amended and supplemental petition, and refused to plead further. Judgment was entered for defendant, and the plaintiff brings the case to this court by transcript. The amended and supplemental petition is quite lengthy, but a synopsis of the allegations is about as follows: That on the 28th day of June, 1915. the plaintiff was the owner of and entitled to the possession of certain real estate which had theretofore been mortgaged by plaintiff and one Find lay, lessee of said real estate, to one Milnor, to secure a debt in the sum of $16,800. That said mortgage had been foreclosed by said mortgagee, which foreclosure plaintiff herein had contested on the ground that said Findlay war primarily liable, and all resources of the said Findlay should be exhausted before the said property of plaintiff would be liable. That said foreclosure suit had been appealed to the Supreme Court of this state as No. 5733 (
Does the foregoing Petition state a cause of action good as against general demurrer? An examination of the petition discloses that plaintiff has failed to set out any damages resulting to him from the alleged fraudulent ads. He alleges that he was not informed that Cummings and Holt were negotiating with Milnor for the purchase of the notes, mortgages, and judgments, and that such fact was concealed from him by Cummings and Holt, and if he had known of such fact he would not have made the quitclaim deed. We do not perceive how this would be material as a basis for an action for fraud and deceit, since Cummings as assignee could take no greater interest in the notes, mortgages, and judgment than Milnor, the assignor, had. It is true that Plaintiff follows this up with an allegation that Cummings thereafter filed a motion In the Supreme Court setting out that he was the owner both of the interest of Milnor and Martin In the matters involved in cause No. 5733 In said Supreme Court, and that therefore only a moot question was before the Supreme Court, but plaintiff does not allege that this motion was ever acted upon by the Supreme Court, or that he suffered any damage by reason of such motion. The mere fact that defendants did not disclose to plaintiff their negotiations with Milnor for the purchase of the judgment rendered in his favor against the plaintiff does not of Itself, in the absence of an allegation of damage resulting therefrom, constitute actionable fraud; nor the mere fact that defendants later filed a motion In the Supreme Court, in No. 5733, setting out that they had purchased the title of the real estate involved In this action from plaintiff and the judgment of Milnor, and owned all the interest of both plaintiff and Milnor in the matter in controversy, rendering the matter before that court a moot question, does not of itself, in the absence of an allegation of damages resulting therefrom, constitute actionable fraud. The plaintiff, to state a cause of action, must allege some damage as the result of such acts of concealment. It Is not alleged that plaintiff was deprived of his right to prosecute his appeal to a final determination upon the merits, nor that plaintiff was deprived of any right or any interest In the property by the acts or concealment of the defendants. Failing to do this, we think he fails to that extent to state a cause of action. If it was intended by the plaintiff that the lower court or this court should take Judicial knowledge of cause No. 5733 (Martin v. Milnor et al.,
It follows that the judgment of the trial court in sustaining the demurrer to the amended and supplemental petition was correct.
The cause is affirmed.
By the Court: It is so ordered.