Opinion
No. 6262.
March 12, 1936.
APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Gillies D. Hodge, Judge.
Action for damages for alleged false representations. Judgment of nonsuit. Reversed and remanded.
Orland Goff, for Appellant.
Where misrepresentation is made with reference to the existence or the amount of an encumbrance the measure of damages is the amount of the encumbrance if it is falsely represented that none exists, or if the amount has been falsely represented then the difference between the amount as represented and the actual amount due. (27 R. C. L. 385, par. 87; 8 L.R.A., N.S., 810 (note); 123 Am. St. 788 (note); Crane v. Schaefer, 140 Ill. App. 647; Robbins v. Nelsen, 70 Colo. 504, 202 P. 707.)
When the insufficiency of the evidence is relied on as a ground of nonsuit, the motion must specify wherein the evidence is insufficient, and, if it does not do so, it should be denied. ( Mole v. Payne, 39 Idaho 247, 227 P. 23; Coulson v. Aberdeen-Springfield Canal Co., 39 Idaho 320, 227 P. 29 (in special concurring opinion of Justice Budge); Carver v. Ketchum, 53 Idaho 595, 26 P.2d 139.)
A.L. Morgan, for Respondent Walker.
J.H. Felton, for Respondent Towne.
The rule that a nonsuit cannot be sustained unless the ground upon which it is based was, at the time the motion was made, called to the attention of the court and of plaintiff, is based upon the ground that such notice is necessary in order to give the trial court and opposing counsel an opportunity to correct the failure of proof if such can be done. ( Idaho Mercantile Co. v. Kalanquin, 7 Idaho 295, 62 P. 925; Coulson v. Aberdeen-Springfield Canal Co., 39 Idaho 320, 227 P. 29; Jacob v. Watson et al., 113 Cal.App. 299, 298 P. 64.)
In order to show damage from fraud the purchaser of property must show that the property he obtained was of less value than the price paid for it. ( Smith v. Neeley, 39 Idaho 812, 231 Pac. 105; Smith v. Johnson, 47 Idaho 468, 276 P. 320; Frank v. Davis, 34 Idaho 678, 203 P. 287.)
Respondent Walker sold certain real property to appellant, respondent, Mrs. Towne, releasing her second mortgage on the property for a certain consideration, appellant assuming and agreeing to pay a first mortgage due the Federal Land Bank. Thereafter appellant brought this suit to recover $699.50, one year's delinquent interest which he was compelled to pay on the first mortgage, on the ground that the respondents had falsely and fraudulently represented that there were no past due payments of interest, contrary to the true facts. A nonsuit was granted on the theory that there was no allegation or proof that the land so purchased was not reasonably worth the full amount appellant paid plus the amount sued for herein; in other words, that there was no allegation that the property was of less value than the price paid, relying on Frank v. Davis, 34 Idaho 678, 203 P. 287, Smith v. Neeley, 39 Idaho 812, 231 P. 105, and Smith v. Johnson, 47 Idaho 468, 276 P. 320.
Those cases and the rule announced are not applicable herein, because this action does not involve the value of the property but in effect an alleged misrepresentation as to the price to be paid. The rule as to the measure of damages in such a case is well settled in 27 C.J. 101, sec. 250, as follows:
". . . . Where in the sale of mortgaged property there is a false representation as to the amount of interest due and unpaid on the mortgage, damages are properly measured by the amount of unpaid interest which the purchaser is compelled to pay as a result of the fraud."
supported by the cases cited in note 80 of the text, and note in 26 A.L.R. at 534; note in 8 L.R.A., N.S., 804 at 810; 27 R. C. L. 385, sec. 87; note in 123 Am. St. at 788; Smith on The Law of Frauds, p. 322, sec. 299, note 48; Robbins v. Nelsen, 70 Colo 504, 202 P. 707; Brunnell v. Carr, 76 Vt. 174, 56 Atl. 660; Crane v. Schaefer, 140 Ill. App. 647; Love v. McElroy, 106 Ill. App. 294; Haight v. Hayt, 19 N.Y. 464; Simmons v. Aldrich, 41 Wis. 241. This theory was also recognized in Goody v. Maryland Casualty Co., 53 Idaho 523, 25 P.2d 1045.
Appellant also assigns as error the insufficiency of the motions for nonsuit. Since the motions were improperly granted as indicated above, it is unnecessary to pass upon this point further than to call attention to the rule frequently mentioned in this court, that motions for nonsuit should specify wherein the evidence is insufficient. ( Carver v. Ketchum, 53 Idaho 595, 26 P.2d 139; Magee v. Hargrove Motor Co., 50 Idaho 442, 296 Pac. 774; Coulson v. Aberdeen-Springfield Canal Co., 39 Idaho 320, 325, 227 P. 29; Mole v. Payne, 39 Idaho 247, 227 P. 23; Idaho Mercantile Co. v. Kalanquin, 7 Idaho 295, 62 P. 925.) The importance of this is disclosed herein because Mrs. Towne contended that there were additional reasons to those urged by respondent Walker supporting the nonsuit in her favor, yet she merely adopted Walker's motion. Since the case has to be remanded for a new trial it is unnecessary to discuss further these contentions made by respondent Towne, no authorities being cited in connection therewith nor argument made in the briefs. ( Davenport v. Burke, 27 Idaho 464, 149 P. 511; Hardy v. Butler, 39 Idaho 99, 226 P. 669; Nelson v. Johnson, 41 Idaho 703, 243 P. 649; Farrar v. Parrish, 42 Idaho 451, 245 Pac. 934; McGrath v. West End Orchard Land Co., 43 Idaho 255, 251 Pac. 623; Estate of Fisher, 47 Idaho 668, 279 P. 291; Merchants Trust Co. v. Davis, 49 Idaho 494, 290 P. 383; Harris v. Chapman, 51 Idaho 283, 5 P.2d 733; Winton Lumber Co. v. Kootenai County, 53 Idaho 539, 26 P.2d 124; Crowley v. Idaho Industrial Training School, 53 Idaho 606, 26 P.2d 180.)
Judgment reversed, and the cause remanded with instructions to the trial court to overrule the motions for nonsuit, and proceed with a retrial of the matter. Costs to appellant.
Holden and Ailshie, JJ., concur.
Budge, J., did not participate.
Morgan, J., deeming himself to be disqualified, did not sit with the court nor participate in the opinion.