Jackson & Sharp Co. v. Fay

20 App. D.C. 105, 1902 U.S. App. LEXIS 5432

• Court: District of Columbia Court of Appeals
• Decided: May 7, 1902
• Docket: No. 1173
• Status: Published

Opinion

Mr. Justice Shepard

delivered the opinion of the Court:

Assuming without necessarily deciding, that the representations' of the defendant amounted to something more either than the mere expression of a misleading opinion, or what has been called a promissory statement, upon which no action of deceit will lie, we are of the opinion that the declaration is fatally defective upon another material ground.

To maintain an action of deceit, it must not only be made to appear that the plaintiff has been induced to take, or refrain from action by reason of the willful or reckless misrepresentations of a material fact, but also that through such action or its omission, he has sustained some appreciable damage. Ming v. Woolfolk, 116 U. S. 599, 603; Marshall v. Hubbard, 117 U. S. 415; Am. & Eng. Encyc. of Law (2d ed.), p. 137.

The defendant having demurred, the facts alleged in the declaration with all the necessary and reasonable inferences therefrom must be accepted as true. The recitals thereof charging fraud are so precise and elaborate, in respect of the purpose of the inquiry, the particular statement made in response thereto, and the expected and known reliance placed thereon, that we have assumed their sufficiency as before stated. But the same cannot be said of the allegations in respect of the damages sustained.

The final words of the declaration, that plaintiff “ has wholly lost ” the money due it from Driscoll is a conclusion merely, without sufficient foundation in preceding allegations of fact. The entire allegation of damages is that, through reliance on the representations of the defendant, the plaintiff “ refrained from protecting itself by legal proceedings, as it could and would otherwise have done.” It is not alleged, however, that plaintiff promised or agreed to refrain from taking action against Driscoll in consideration of the order and acceptance and the representations of the defendant.

It was not of course certain that Driscoll would obtain a judgment at all on his claim against the Government, and plaintiff alleges no promise to await its determination. It is not alleged that Driscoll was solvent then or that the demand could have been made out of him at the time, and that he became insolvent during a reasonable period of forbearance induced, and intended to be induced by the representations made. The order was accepted August 14, 1895, and on February 12, 1900, defendant notified the plaintiff that the money on the judgment would be paid directly to the said Driscoll and would not come into the hands of the defendant.

At that time, it is charged that it was “ too late for plaintiff to protect itself by legal proceedings against the said Driscoll.” But why it was then too late, or why plaintiff had taken no steps during the long interval remains matter of conjecture only. It was suggested on the argument that the claim against Driscoll had become barred by limitation because more than three years had been suffered to elapse after the execution of the order.

Whether limitation began to run against an action on the order itself from its date, or from the time when plaintiff received the notice that the defendant’s acceptance thereof had become futile through Driscoll’s exercise of his undoubted power over the judgment, is a question that need not be considered.

For aught that appears in the declaration, the claim against Driscoll may have been then in judgment, or evidenced by an instrument under seal, or kept alive by new promises if in the nature of a simple contract.

We think that the court was right in sustaining the demurrer, and the judgment will be affirmed with costs. It is so ordered.

Affirmed.

A motion on behalf of the appellant to modify the judgment of affirmance, was denied on the 23d day of June, 1902, Mr. Justice Morris delivering the opinion of the Court:

In this case, upon a demurrer filed by the appellee Fay, as defendant in the court below, to the declaration of the appellant as plaintiff, the demurrer was sustained; and the plaintiff thereupon electing to stand by its declaration had judgment rendered against it, from which it appealed to this court. Here the judgment was affirmed. Now the appellant comes and moves the court for a modification of the judgment of affirmance in such manner “ as will admit of an amendment of the pleadings in the particular in which this court holds them to be defective.”

Plainly this is an application which should not be entertained, except for very grave reasons and in exceptional cases. The ground of the application is that this court based its decision upon a very different ground from that on which the court below proceeded. But the demurrer was a general' demurrer to the plaintiff’s declaration, in which several grounds of invalidity of the declaration were stated; and if the court below preferred to rest its decision on one of these grounds and this court upon another, it is not apparent that the plaintiff was not duly notified of'the imperfections of its case as made by it. Instead of amending its declaration, as it was then duly notified to do, it deliberately elected to stand by that declaration and to try its fortunes in this court, with the reservation, as we may assume, that it would go back and try the case over again, if the decision against it should happen not to be sustained upon the precise grounds for it assigned by the court below. We find no warrant in law for this practice; and we do not think that it would be in accordance with the requirements of justice.

Various cases have been cited in which appellate courts have remanded causes for the purpose of amendment in order that full justice might be done in the premises. Magruder v. Belt, 7 App. D. C. 303; Waite v. Larocque, 12 App. D. C. 410; Wiggins Ferry Co. v. Railroad Co., 142 U. S. 396; Liverpool, etc., Co. v. Phœnix Co., 129 U. S. 397; Jones v. Meehan, 175 U. S. 1; Melville v. Railroad Co., 2 Mackey, 63; Merrick v. Giddings, McA. & Mackey, 57. The majority of these cases are of equity cognizance, wherein it is always proper to direct amendment whenever the interest of justice seems to require it. But we have no hesitation in saying that we think that in causes at common law as well as in equity the power of amendment conferred by statute may be freely exercised or authorized by appellate courts, if such is the requirement of justice in the particular case. We do not find any such requirement in the present case; and the cases cited from 2 Mackey and McArthur & Mackey are not authority for the exercise of the jurisdiction here. Apart from the peculiar relations between the special terms and the general term of the Supreme Court of the District of Columbia, which authorized appeals from the special terms to the general term in many cases of an interlocutory nature without waiver of the right to amend, we think that a careful perusal of the two cases cited will show that there were special circumstances in each which justified the appellate branch of that court in the allowance of amendment. Here we have a distinct notification to a party that his pleading is defective and tbat lie sbonld amend, if be would recover, and a positive refusal by him to avail bimself of bis right. If we were to allow or direct amendment now, it would be impossible in the future to have any finality in such cases, either in the court below or in this court.

The motion for modification must be refused.