Thompson v. Koewing

Supreme Court of New Jersey

Thompson v. Koewing

75 A. 752, 79 N.J.L. 246, 50 Vroom 246, 1910 N.J. Sup. Ct. LEXIS 137

CourtSupreme Court of New Jersey

DecidedMarch 4, 1910

StatusPublished

Cited by3 cases

This text of 75 A. 752 (Thompson v. Koewing) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thompson v. Koewing, 75 A. 752, 79 N.J.L. 246, 50 Vroom 246, 1910 N.J. Sup. Ct. LEXIS 137 (N.J. 1910).

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Opinion

[248]*248The opinion, of the court was delivered by

Garisson, J.

The statements of the defendant that the land covered by the $90,000 mortgage was worth $120,000 at a fail market value and would bring that sum at a fair sale in the market, may be regarded as mere expressions of opinion within the ease of Conlan v. Roemer, 23 Vroom 53; but the statement on which such expressions were based, viz., that the property had cost the sum of $120,000, was a statement of a fact as of the knowledge of the defendant, and hence was well pleaded, whether its falsity consisted in its untruth as a fact or in the untruth of the defendant’s affirmance of his knowledge of its truth as a fact. Cummings v. Cass, Id. 77.

The averments that this statement was made to be acted upon by the plaintiff and that he did act upon it to his injury, in ignorance of its falsity, which was known to the defendant when he stated it to be true, constitute a good cause of action as against a demurrer. Byard v. Holmes, 5 Vroom 296.

The contention as to the marital duress of Jessie E. Koewing cannot be raised. Upon the case constituted by the declaration and the demurrer thereto Jessie is not the wife of the other defendant. On demurrer, facts not averred to exist are non-existent; matters of mere recital in a subjoined contract cannot take the place of substantive averments in the pleading itself. Moreover, Jessie made no representations either in or out of the presence of the other defendant; the allegation is that she was the principal and the other defendant her agent' who, in her interest and with her connivance, made the false representation. The cases, therefore, of Hildreth v. Camp, 12 Vroom 306, and Emmons v. Stevane, 44 Id. 349; 48 Id. 570, have no application.

A rule may be entered by the plaintiff overruling the demurrer.

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[248]*248The opinion, of the court was delivered by

Garisson, J.

The statements of the defendant that the land covered by the $90,000 mortgage was worth $120,000 at a fail market value and would bring that sum at a fair sale in the market, may be regarded as mere expressions of opinion within the ease of Conlan v. Roemer, 23 Vroom 53; but the statement on which such expressions were based, viz., that the property had cost the sum of $120,000, was a statement of a fact as of the knowledge of the defendant, and hence was well pleaded, whether its falsity consisted in its untruth as a fact or in the untruth of the defendant’s affirmance of his knowledge of its truth as a fact. Cummings v. Cass, Id. 77.

The averments that this statement was made to be acted upon by the plaintiff and that he did act upon it to his injury, in ignorance of its falsity, which was known to the defendant when he stated it to be true, constitute a good cause of action as against a demurrer. Byard v. Holmes, 5 Vroom 296.

The contention as to the marital duress of Jessie E. Koewing cannot be raised. Upon the case constituted by the declaration and the demurrer thereto Jessie is not the wife of the other defendant. On demurrer, facts not averred to exist are non-existent; matters of mere recital in a subjoined contract cannot take the place of substantive averments in the pleading itself. Moreover, Jessie made no representations either in or out of the presence of the other defendant; the allegation is that she was the principal and the other defendant her agent' who, in her interest and with her connivance, made the false representation. The cases, therefore, of Hildreth v. Camp, 12 Vroom 306, and Emmons v. Stevane, 44 Id. 349; 48 Id. 570, have no application.

A rule may be entered by the plaintiff overruling the demurrer.

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75 A. 752, 79 N.J.L. 246, 50 Vroom 246, 1910 N.J. Sup. Ct. LEXIS 137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-koewing-nj-1910.

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