Opinion
June, 1904.
Horatio G. Glen, for the appellant.
Marvin H. Strong and Alvah Fairlee, for the respondent.
The action is one brought for damages for alleged fraudulent representations concerning the amount of certain street assessments, subject to the payment of which the plaintiff purchased certain premises of the defendant. It is alleged that the assessments were represented by the defendant to be not to exceed $160, when they in fact amounted to $320. The answer in its 1st and 2d paragraphs contained a general denial of the allegations of the complaint, and in its 3d paragraph the matters are alleged as "a further and separate answer and defense," which are demurred to as insufficient in law upon the face thereof. The matters so alleged in this paragraph are but a recital of the evidence, or some of it, which the defendant relies upon in support of his general denial and, standing alone and admitted to be true, they in no sense amount to a defense. It is alleged that a contract was entered into in writing between the plaintiff and the defendant whereby the latter agreed to sell to the former the premises in question for $375, subject to the street assessments thereon and that no limitation as to the amount of such assessments was set forth in the contract; also that a deed was subsequently executed and delivered by the defendant to the plaintiff of the premises in question, subject to all liens and incumbrances thereon for street improvements, and without any covenant as to the amount of such liens and incumbrances, which the plaintiff therein assumed and agreed to pay. It is also alleged that the assessments were a matter of public record, open to the inspection of the plaintiff and constituted notice of the amount of the assessments on the premises at the time such contract and deed were accepted by him. The paragraph demurred to contains no denial of the fraud alleged in the complaint, which is the gist of the cause of action. It was apparently inserted in the answer because of the doubt which the pleader entertained as to whether the matters alleged would be admissible in evidence under the general denial contained in the 1st and 2d paragraphs of the answer, but it is quite as apparent that the plaintiff could not prove the bargain and deed alleged in the complaint without himself putting in evidence both the contract to sell and the deed alleged in this paragraph and that he would have to resort to the official records of the assessments to show that they are larger than he claimed the defendant represented them to be, so the question as to whether these matters can be proven under the general issue is of little moment. If, however, the plaintiff can discover a way of proving the allegations of his complaint without himself offering these documents and records in evidence I entertain no doubt that they would be competent to be received in evidence upon the offer of the defendant under his general denial, as supporting, or tending to support, his theory that the plaintiff knew, or ought to have known, of the exact truth concerning the amount of the assessments before the delivery of the deed to him. But, standing alone, the matters alleged in the paragraph demurred to are insufficient in law as a separate answer and defense, for the reason that they may all be true and still the fraud alleged in the complaint, which is the main issue to be determined, is in no way controverted or defended against by reason of them.
In order to save his pleading the defendant urges that the complaint is insufficient, but an examination of that shows that it contains all the elements required and states a good cause of action for fraud. It alleges the contract to purchase between the parties; that the defendant made certain false representations to the plaintiff, which were known to the defendant to be false, and that they were made for the purpose of inducing plaintiff to enter into the bargain, and that the plaintiff believed such representations and relying upon them was induced to enter into the bargain to purchase the real estate in question and parted with his money therefor and that he was damaged by reason thereof.
The judgment should be affirmed, with costs, with leave to plead anew.
All concurred.
Interlocutory judgment and order affirmed, with costs, with leave to defendant to amend his answer within twenty days upon payment of costs of the appeal and of the demurrer.