174 P. 186 | Mont. | 1918
delivered the opinion of the court.
This suit was brought to secure the rescission of a contract for the purchase of certain shares of stock of the State Life Insurance Company of Great Falls; to secure the cancellation of three promissory notes representing the purchase price, and, by way of ancillary relief, to secure an injunction restraining the defendant from transferring the notes pending the litigation. After a hearing upon the return of an order to show cause, an injunction pendente lite was issued and defendant appealed from the order. Three principal questions are presented:
1. It is urged that the complaint does not state a cause of action because (a) it does not allege that plaintiff has suffered pecuniary loss, and (b) .it does not disclose that the alleged misrepresentations concerned material facts.
(a) Is it essential to the statement of a cause of action for
It is axiomatic in the law that, if it is necessary to allege a particular fact, it is equally necessary to prove" it, if the allegation is put in issue. It certainly could not be said that it would be sufficient for plaintiff to allege that as a result of the fraud
Courts of equity, like courts of law, however, do not concern themselves with wrongs which do not produce injury; but “injury” and “pecuniary loss” are not synonymous terms. In Shoudy v. Reeser, 48 Mont. 579, 142 Pac. 205, this court stated the rule that, to make out a case of actual fraud, it is necessary for plaintiff to allege: (1) That defendant made representations with the intent that they should be relied upon; (2) that they were false; (3) that they were accepted as true and plaintiff was induced to act upon them; and (4) that by reason of the fraud plaintiff suffered damage. These are the elements recognized by the authorities generally. Most of the courts and text-writers employ the term “damage” in the sense of injury; a few restrict its meaning to financial loss. We prefer to adhere to the rule which gives to the term its broader significance, as including either pecuniary loss or the alteration of one’s position to his prejudice. Fraud may result in injury which cannot be measured in dollars and cents. Indeed, if the rule for which appellant contends be accepted, then insolvency of the defendant alone determines the jurisdictional question, for it is inconceivable that any injury which can be measured by a money standard cannot be redressed by an action at law if the guilty party is financially responsible. But insolvency is not the sole determining factor in suits of this character, and upon this the authorities are generally agreed.
(b) It is elementary that, to constitute actionable fraud, the
2. Appellant contends that every material allegation of the
The complaint in this instance was verified positively and not upon information and belief. It was offered in evidence upon the hearing and had the effect of an affidavit. (22 Cyc. 941.)
3. It is contended that, in any event, the court abused its
The order is affirmed.
Affirmed.
Motion for rehearing denied October 21, 1918.