City of New Bern v. White

Supreme Court of North Carolina

City of New Bern v. White

110 S.E.2d 446, 251 N.C. 65, 1959 N.C. LEXIS 501

CourtSupreme Court of North Carolina

DecidedOctober 14, 1959

Docket101

StatusPublished

Cited by13 cases

This text of 110 S.E.2d 446 (City of New Bern v. White) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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City of New Bern v. White, 110 S.E.2d 446, 251 N.C. 65, 1959 N.C. LEXIS 501 (N.C. 1959).

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Opinion

WiNBORNE, C. J.

Plaintiff’s Appeal: Plaintiff contends and we hold rightly that the findings of fact submitted to the court are insufficient to support the judgment from which appeal is taken.

The facts agreed are in the nature of a special verdict upon which *68 the court is requested to render judgment arising as a matter of law thereon. The facts agreed constitute the sole basis for decision. And the court is not permitted to hear evidence, make additional findings, or infer or deduce other facts from those stipulated. See Sparrow v. Casualty Co., 243 N.C. 60, 89 S.E. 2d 800, and numerous other cases designated in Strong’s N. C. Index- Controversy Without Action, Sec. 2.

In this connection the agreed facts set out in the record appear insufficient to establish all of the essential elements of actionable fraud. “The essential elements of actionable fraud or deceit are the representation, its falsity, scienter, deception, and injury. The representation must be definite and specific; it must be materially false; it must be made with knowledge of its falsity or in culpable ignorance of its truth; it must be made with fraudulent intent; it must be reasonably relied on by the other party; and he must be deceived and caused to suffer loss,” as stated by Adams, J., for the Court in Electric Co. v. Morrison, 194 N.C. 316, 139 S.E. 455. See also Berwer v. Ins. Co., 214 N.C. 554, 200 S.E. 1, and cases cited.

Testing the agreed facts here involved by -this statement of law, some of the elements of fraud, particularly that as to fraudulent intent are lacking

And where findings are insufficient to support the judgment, the cause must be remanded for further proceeding in conformity with direction given in Trustees v. Banking Co., 182 N.C. 298, 109 S.E. 6. See Atkinson v. Bennett, 242 N.C. 456, 88 S.E. 2d 76, and citation of cases in Strong’s N. C. Index- Appeal and Error, Sec. 49, note 590. And it is so ordered.

Defendant White’s Appeal:

Since the counterclaim of defendant White is predicated in the main upon the alleged actionable fraud of plaintiff, the cause of action there for is without valid basis until issue of fraud is determined. Therefore the Court’s ruling that the cause must be remanded, as directed on plaintiff’s appeal necessitates the setting aside the judgment in favor of defendant White, and the remanding of the whole case.

On Plaintiff’s Appeal— Error and remanded.

On Defendant White’s Appeal— Error and remanded.

HiggiNS, J., not sitting.

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WiNBORNE, C. J.

Plaintiff’s Appeal: Plaintiff contends and we hold rightly that the findings of fact submitted to the court are insufficient to support the judgment from which appeal is taken.

The facts agreed are in the nature of a special verdict upon which *68 the court is requested to render judgment arising as a matter of law thereon. The facts agreed constitute the sole basis for decision. And the court is not permitted to hear evidence, make additional findings, or infer or deduce other facts from those stipulated. See Sparrow v. Casualty Co., 243 N.C. 60, 89 S.E. 2d 800, and numerous other cases designated in Strong’s N. C. Index- Controversy Without Action, Sec. 2.

In this connection the agreed facts set out in the record appear insufficient to establish all of the essential elements of actionable fraud. “The essential elements of actionable fraud or deceit are the representation, its falsity, scienter, deception, and injury. The representation must be definite and specific; it must be materially false; it must be made with knowledge of its falsity or in culpable ignorance of its truth; it must be made with fraudulent intent; it must be reasonably relied on by the other party; and he must be deceived and caused to suffer loss,” as stated by Adams, J., for the Court in Electric Co. v. Morrison, 194 N.C. 316, 139 S.E. 455. See also Berwer v. Ins. Co., 214 N.C. 554, 200 S.E. 1, and cases cited.

Testing the agreed facts here involved by -this statement of law, some of the elements of fraud, particularly that as to fraudulent intent are lacking

And where findings are insufficient to support the judgment, the cause must be remanded for further proceeding in conformity with direction given in Trustees v. Banking Co., 182 N.C. 298, 109 S.E. 6. See Atkinson v. Bennett, 242 N.C. 456, 88 S.E. 2d 76, and citation of cases in Strong’s N. C. Index- Appeal and Error, Sec. 49, note 590. And it is so ordered.

Defendant White’s Appeal:

Since the counterclaim of defendant White is predicated in the main upon the alleged actionable fraud of plaintiff, the cause of action there for is without valid basis until issue of fraud is determined. Therefore the Court’s ruling that the cause must be remanded, as directed on plaintiff’s appeal necessitates the setting aside the judgment in favor of defendant White, and the remanding of the whole case.

On Plaintiff’s Appeal— Error and remanded.

On Defendant White’s Appeal— Error and remanded.

HiggiNS, J., not sitting.

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110 S.E.2d 446, 251 N.C. 65, 1959 N.C. LEXIS 501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-new-bern-v-white-nc-1959.

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