MacK v. White

McCOMB, J.

From a judgment in favor of plaintiff in an action to recover damages from defendant for having obtained money from plaintiff through fraudulent representations, defendant appeals.

Prior to the events narrated herein plaintiff was married to a Mr. Mack and was still married when in 1934 she and defendant commenced living together as husband and wife and so continued until February, 1948. She did not procure a divorce from her former husband until 1937. In 1939 she and defendant purchased a piece of real property for $2,800, plaintiff making the down payment of $350, and defendant making all the monthly payments thereafter until the property was sold in 1947 for $8,000. By the transaction they each netted $3,229.92. At the time the property was purchased defendant was employed by the Works Progress Administration and for that reason title to the property was taken in plaintiff’s name. Repeatedly during the time they lived together defendant promised to marry plaintiff and finally when she became insistent that he do so, he said he would when she put the title to the property in their names jointly. In 1946, in order to show her readiness “for sacrifice,” plaintiff went to a notary public and signed a purported deed in which the property was placed in the name of plaintiff and defendant as joint tenants. In February 1947, the property was sold and plaintiff gave defendant half of the proceeds of the sale in consideration of his promise to marry her. Defendant admitted that he did not at any time intend to marry plaintiff and on February 2, 1948, plaintiff left defendant and thereafter demanded return of the money which she had given him in consideration of his promise to marry her.

Questions:

First:

Since the allegations of fraud in the complaint were in general terms and not of specific facts, did the complaint fail to state a cause of action against defendant for obtaining money from plaintiff through fraudulent representation ?

This question must be answered in the negative. It is the general rule that where a complaint alleges fraud in general

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terms and the parties go to trial without filing a special demurrer to the complaint on the ground that fraud has not been sufficiently alleged, such infirmity in the complaint is waived and may not be successfully urged for the first time on appeal.