T. T. SPANN, F. B. JONES and E. E. READING, Appellants,
H. L. MEIDINGER, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.
Mr. L. C. McNabb, for Appellants.
Mr. W. F. Dains, for Appellee.
H. L. Meidinger, hereinafter called plaintiff, brought suit against T. T. Spann, F. B. Jones and E. E. Reading, hereinafter called defendants, for damages resulting from the alleged false representations of Spann. The case was tried to a jury, which returned a verdict in the sum of $500 in favor of plaintiff, and, from the judgment rendered on such verdict and the denial of the motion [37 Ariz. 481] for new trial, defendants have appealed. The facts of the case, stated most strongly in behalf of plaintiff, as they must be under the verdict of the jury, appear to be as follows:
Spann is a duly licensed real estate salesman, and Jones and Reading are sureties on his statutory bond as such. Some time in the spring of 1928 one James E. Perkins, who was at that time the owner of forty acres of real estate located in the Salt River Valley, executed two promissory notes in the amount of $650 each, and a third note of $500 in favor of one J. T. Christian. The $650 notes were secured by a realty mortgage on the forty acres above referred to, and the $500 note was secured by a mortgage on certain personal property described as follows:
"All of the undivided one-half of the crop to be grown during the season of 1928, on the Southwest Quarter of the Southwest Quarter of Section Fifteen, Township Two N., Range One E., of the Gila and Salt River Base and Meridian, containing 40 acres, more or less, according to the U.S. Government Survey."
Christian was desirous of selling the notes, and employed Spann as his broker for that purpose. Plaintiff was the owner of certain real estate known as No. 2333 North Thirteenth Street, Phoenix, Arizona. Spann and plaintiff entered into negotiations which finally culminated in the sale to Christian by plaintiff of his real estate, part of the payment therefor being the $500 note secured by the chattel mortgage above referred to. In the course of the negotiations a question arose as to the condition of the crop covered by the chattel mortgage, and Spann made certain representations regarding it upon which this suit is based. We shall quote them at the proper time.
About the middle of May plaintiff desired to sell the $500 note to another party, who before the sale was consummated wished to look at the crop covered [37 Ariz. 482] by the mortgage. Upon examining the land in question, it appeared that no such crop had ever been planted. Thereafter plaintiff brought this suit.
The essential elements of a suit for deceit are that the representation upon which the suit is based (1) was made as a statement of fact; (2) that it was untrue; (3) that it was known to be untrue by the party making it, or else recklessly made; (4) that it was made with intent to deceive and for the purpose of inducing the other party to act upon it; (5) that he did rely and act upon it; and (6) that he was damaged thereby. Let us test the facts of the case in question by these elements.
The specific representations upon which plaintiff relies are found in the reporter's transcript, and were made during a conversation between plaintiff and Spann before the deal was closed, at the former's house. Plaintiff himself testified as follows:
"We talked about it again and I told him I didn't have time to go out and see the place -- she was rushing me for the house and I was busy -- and if the place was being put in crop and I
was satisfied with the contracts all right because they were secured by the land, but the crop mortgage, I wanted to be sure the crop was in there and he said I didn't need to worry about that, that the man was ...