Sims v. Eiland, 57 Miss. 83

Sims v. Eiland

57 Miss. 83 | Miss. | 1879

Campbell, J.,

delivered the opinion of the court.

The gist of this action is fraudulent misrepresentation, knowingly made by the defendants, whereby the plaintiffs, trusting to it, were damnified. To maintain the action, the defendants must have made a false statement knowing it to be false. Clopton v. Cozart, 13 S. & M. 363 ; Taylor v. Frost, *8539 Miss. 328 ; Pasley v. Freeman, 2 Smith’s Lead. Cas. 157. The second plea, which avers in substance that the defendants “ honestly believed ” their representation to be true when they made it, was a sufficient answer to the declaration, and the demurrer to it was properly overruled. The replication, that the defendants had no reasonable ground to believe that their representation was true when they made it, is an argumentative denial that they did believe it, for one cannot believe what he has no reasonable ground to believe. Formerly, argumentativeness was a ground of special demurrer, but now “ no pleading shall be deemed insufficient for any defect which could heretofore be objected to only by special demurrer.” Acts 1878, p. 190. The argumentativeness of the replication, therefore, does not constitute insufficiency, and the only question is, whether a replication traversing the plea is good. Clearly it is, for the plaintiffs having demurred ineffectually to the plea, were required to reply by traversing it, or confessing and avoiding it. They chose the former course, and inferentially denied the truth of the plea. The demurrer to the replication should have been overruled, and the issue joined by the traverse of the plea should have been tried. The judgment will be reversed, the demurrer to the replication overruled, and the cause remanded for further proceedings in accordance with this opinion.

Judgment accordingly.