Telman v. Galles , 41 N.M. 56 ( 1936 )

I agree with the statement of legal principles applicable to this case as contained in the opinion written by Mr. Justice BRICE. One of the principles here pertinent is that a promise to pay money, accompanied by a present intent not to do so, will support an action of deceit where injury follows reliance on the promise. I do not understand appellant now to contend otherwise. What he does challenge, and vigorously, is sufficiency of the evidence to sustain a finding either that there was ever any such promise to pay money, or, if it be held there is such evidence, that it was made with the evil intent charged.

Although no express promise to pay is shown, viewing all the testimony and permissible inferences in the light most favorable to appellee, as must be done upon demurrer, or motion to dismiss treated as demurrer, it was within the proper sphere of the fact finder to characterize what was said as a promise to pay, however much one may feel a contrary inference more warranted. Proof of the making of such a promise was absolutely essential to appellee's action of deceit. He alleged it. Appellant's answer denied it. This denial, plus proof and finding of the promise, supports the inference of an intention not to keep it entertained at the time the promise was made. Anderson v. Reed, 20 N.M. 202,148 P. 502, 506, L.R.A. 1916B, 862; Texas Employers' Ins. Ass'n v. Knouff (Tex.Civ.App.) 297 S.W. 799, 804, reversed on other grounds (Tex.Com.App.) 7 S.W.2d 68. In Anderson v. Reed, supra, where fraud in the inception of the contract was involved, we said: "She says that no such contract was ever made by her, and this being true, we may reasonably assume that she never intended to perform or keep it."

In Texas Employers' Ins. Ass'n v. Knouff, supra, the court said: "The very fact that appellant's agent denied he made said agreement, in the face of the fact found by the jury that he did make it, is a strong circumstance tending to show he had no intention of carrying out the agreement which he in fact made."

I am unable to see in the receivership proceedings anything to support an inference of fraudulent intent on appellant's part in making the promise found by the jury to have been made. It is not claimed appellant initiated and conducted this necessarily expensive and complicated receivership of a corporation showing inventoried assets in excess of $37,000 as one step in a scheme to defraud appellee of $1,200. Such a contention would be absurd on its face. Yet this conclusion seems essential to finding in the receivership proceedings evidence of evil intent not to pay as promised. Without the order there made, limiting the time for proving claims, no bar would have attached to appellee's claim. Without the bar the whole scheme fails. Did the latter initiate the proceedings to supply such a bar? If agreed such proceedings were not prosecuted with this end in view, then no unfair implication should rest upon the circumstances that the time for filing and proving claims was limited by court order as in ordinary cases of corporate receiverships, or that other proceedings and results usual in such receiverships transpired.

But, for the reasons given, I think the judgment of the trial court must stand. I therefore concur in its affirmance.