Edge v. Bryan

THOMAS, J.

Appeal from a judgment of the superior court by the defendants, E. P. Bryan, L. T. Bradford, and H. H. Cotton, entered against them and in favor of the plaintiff, for the sum of $2,669.84. The complaint alleged facts which, if true, would support a rescission of the contract referred to therein, and a recovery of damages claimed, if proven. Demurrer to the complaint was interposed, general and special, and by the court overruled. The answer of the defendants denied generally and specifically all the material allegations of the complaint.

The complaint for the relief asked was based upon certain alleged fraudulent representations made at the time of an alleged sale of real property, and which said alleged .fraudulent representations, as set forth in the complaint, are as follows: “(1) That gas-pipes were already upon or under said land; (2) that said land was virgin, rich and arable;

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(3) that before the completion of the contract of purchase, water would be piped by the defendants to every acre of said land; and (4) that before the completion of said contract, defendants would build in the subdivision, at a point convenient of access to the land purchased by plaintiff, a warehouse for the storing and marketing of the respective products of said land. That said representations, facts and promises were a part of the consideration which induced the plaintiff to enter into said memorandum or agreement of purchase. ’ ’ Then follows the usual allegation that said representations were false, and by the defendants known to be false, specifically specifying the facts supporting this statement. The complaint further alleges: “That said promises of defendants were false and fraudulent, and were made without any intention to perform the same or to carry out any of the terms of said promises, and for the sole purpose of inducing plaintiff herein to enter into said purchase”; that plaintiff believéd said statements to be true; and that so believing she entered into said contract, etc.

It is assumed by appellants, for the purpose of their argument on this appeal—and this assumption is supported by the record—that plaintiff’s proof sustains her allegations as to both the representations and the promises. They urge passionately, notwithstanding this fact, that “as a general rule it is established that representations, to be actionable, must be of an existing fact or present condition, and not as to future intention,” and “must have been made without intention to perform.” There is no legal requirement that