Keith v. Wilder

86 S.E.2d 444 (1955) 241 N.C. 672

H. M. KEITH and J. H. Wicker T/A Keith and Wicker,
v.
M. O. WILDER, Wade Wilder, John Snipes and C. S. Gaines and H. B. Gaines, T/A Gaines Lumber Company.

No. 242.

Supreme Court of North Carolina.

March 23, 1955.

Hoyle & Hoyle and J. G. Edwards, Sanford, for plaintiff-appellees.

Gavin, Jackson & Gavin, Sanford, for defendant-appellants.

DEVIN, Justice.

The defendants demurred ore tenus on the ground that insufficient facts were alleged in the complaint to sustain an action for damages for fraud, and again at the conclusion of all the evidence moved for judgment of nonsuit on the ground that the evidence was insufficient to warrant its submission to the jury. The trial judge overruled the demurrer and denied the motion to nonsuit.

The assignments of error based on these rulings cannot be sustained. The allegations of the complaint are sufficient to state a cause of action for the recovery of damages for false and fraudulent representations inducing the purchase of the timber described, and the evidence offered by the plaintiffs tended to support these allegations. Roberson v. Williams, 240 N.C. 696, 83 S.E.2d 811; Cofield v. Griffin, 238 N.C. 377, 78 S.E.2d 131; Brooks Equipment & Mfg. Co. v. Taylor, 230 N.C. 680, 55 S.E.2d 311.

It is an established principle of law that an action will lie to recover damages for false and fraudulent representation in the sale of property when it is made to appear that such representations were calculated and intended to induce the purchase and were reasonably relied on by the purchaser to his injury and damage.

The rule is accurately stated in Cofield v. Griffin, supra [238 N.C. 377, 78 S.E.2d 133], as follows:

"The essential elements of fraud are these: (1) That defendant made a representation relating to some material past or existing fact; (2) that the representation was false; (3) that when he made it, defendant knew that the representation was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that defendant made the representation with intention that it should be acted upon by plaintiff; (5) that plaintiff reasonably relied upon the representation, and acted upon it; and (6) that plaintiff thereby suffered injury. Parker v. White, 235 N.C. 680, 71 S.E.2d 122; Foster v. Snead, 235 N.C. 338, 69 S.E.2d 604; Vail v. Vail, 233 N.C. 109, 63 S.E.2d 202. A false representation is material when it deceives a person and induces him to act. Starnes v. Raleigh, C. & S. R. Co., 170 N.C. 222, 87 S.E. 43; White Sewing Machine Co. v. Bullock, 161 N.C. 1, 76 S.E. 634."

The able judge who presided over the trial of this case quoted the language of the Cofield case in his charge to the jury.

Again in Gray v. Edmonds, 232 N.C. 681, 62 S.E.2d 77, 79, this Court stated a principle applicable to the facts of record here as follows:

"The defendants bottom their defense on the principle that the purchaser of property seeking redress on account of loss sustained by reliance upon a false representation of a material fact made by the seller may not be heard to complain if the parties were on equal terms and he had knowledge of the facts or means of information readily available and failed to make use of his knowledge or information, unless prevented by the seller. Harding v. Southern Loan & Ins. Co., 218 N.C. 129, 10 S.E.2d 599; Peyton v. Griffin, 195 N.C. 685, 143 S.E. 525. But the rule is also well established that one to whom a positive and definite representation has been made is entitled to rely on such representation if the representation is of a character to induce action by a person of ordinary prudence, and is reasonably relied upon. 23 A.J. 970; Restatement, Torts, secs. 537, 540."

The principles of law embodied in these and other similar decisions of this Court support the ruling of the trial judge. Swinton v. Savoy Realty Co., 236 N.C. 723, 73 S.E.2d 785; Garland v. Penegar, 235 N.C. 517, 70 S.E.2d 486; Haywood v. Morton, 209 N.C. 235, 183 S.E. 280; Ward v. Heath, 222 N.C. 470, 24 S.E.2d 5; Whitehurst v. Life Ins. Co., 149 N.C. 273, 62 S.E. 1067; Lamm v. Crumpler, 240 N.C. 35, 44, 81 S.E.2d 138; Roberson v. Williams, supra; May v. Loomis, 140 N.C. 350, 52 S.E. 728.

The defendants cite Queen v. Sisk, 238 N.C. 389, 78 S.E.2d 152, and Williamson v. Holt, 147 N.C. 515, 61 S.E. 384, 17 L.R.A.,N.S., 240, in support of their argument that the rule of caveat emptor applies to the facts of this case to defeat the plaintiffs' action, but we do not think the principle stated in these cases and in the other cases of similar import cited are controlling here. While the deed conveying the standing timber to the plaintiffs described the land on which the timber stood as the Thompson-Hicks land and did not set out the boundary lines, there was evidence from the plaintiffs that a particular parcel of land was falsely and fraudulently represented as being embraced within the description in the deed.

True, the plaintiffs could have ascertained by an accurate survey the lines and boundaries of the land whether the 29.70-acre tract was included, Plotkin v. Realty Bond Co., 204 N.C. 508, 168 S.E. 820; Peyton v. Griffin, supra, but the defendants cannot complain if the plaintiffs relied upon the defendants positive representation, as testified by plaintiffs, that the timber on this parcel of land was a part of that being sold. Gray v. Edmonds, supra; Ferebee v. Gordon, 35 N.C. 350.

Defendants excepted to the following instruction given by the court to the jury:

"Since it appears from the testimony without contradiction that the defendants were engaged in a common or joint enterprise in connection with the sale of the Gaines timber, the acts and representations of any one of them would be regarded in law as the acts and representations of all. If any one or more of the defendants made false and fraudulent representations to the plaintiffs, or either of them, such representations would be regarded in law as having been made by all of the defendants to both plaintiffs."

The court correctly stated a principle of law applicable to the evidence in this case. Dwiggins v. Parkway Bus Co., 230 N.C. 234, 52 S.E.2d 892; Hall v. Younts, 87 N.C. 285; Mode v. Penland, 93 N.C. 292; G.S. § 59-43.

The defendants' exception to the evidence offered by plaintiffs of statements subsequently made by certain of the defendants, indicating willingness to repay to plaintiffs for the loss suffered, cannot be sustained as the court limited this evidence as competent to be considered only against the individual making the statement.

The defendants noted numerous exceptions to rulings of the court in the admission and exclusion of testimony during the progress of the trial, but these were not brought forward as separate assignments of error, and some of them are not discussed in the brief. Rules 28, 19(3); State v. Bittings, 206 N.C. 798, 175 S.E. 299. However, we have examined these exceptions as they appear in the record and reach the conclusion that none of them are of sufficient merit to justify a new trial.

Likewise we have considered the exceptions to the judge's charge and to the court's failure to charge as indicated in defendants' brief, and we are unable to discover any error of which the defendants can in law complain. The jury accepted the plaintiffs' view of the case on competent evidence, and the court's rulings were free from substantial error. The verdict and judgment will be upheld. In the trial we find

No error.

BARNHILL, C. J., took no part in the consideration or decision of this case.