City of New Bern v. White

110 S.E.2d 446 (1959)

251 N.C. 65

CITY OF NEW BERN, a Municipal Corporation, v. S. R. WHITE, Trading under the firm name and style of S. R. White & Son; and Maryland Casualty Company, a corporation.

No. 101.

Supreme Court of North Carolina.

October 14, 1959.

A. D. Ward, New Bern, for plaintiff appellant and appellee.

Ward & Tucker, Dunn & Dunn, New Bern, for defendant White appellant and appellee.

WINBORNE, Chief Justice.

Plaintiff contends and we hold rightly that the findings of fact submitted to the court are insufficient to support the judgment from which appeal is taken.

The facts agreed are in the nature of a special verdict upon which the court is requested to render judgment arising as a matter of law thereon. The facts agreed constitute the sole basis for decision. And the court is not permitted to hear evidence, make additional findings, or infer or deduce other facts from those stipulated. See Sparrow v. American Fire & Casualty Co., 243 N.C. 60, 89 S.E.2d 800, and numerous other cases designated in Strong's N. C. IndexControversy Without Action, Sec. 2.

In this connection the agreed facts set out in the record appear insufficient to establish all of the essential elements of actionable fraud. "The essential elements of actionable fraud or deceit are the representation, its falsity, scienter, deception, and injury. The representation must be definite and specific; it must be materially false; it must be made with knowledge of its falsity or in culpable ignorance of its truth; it must be made with fraudulent intent; it must be reasonably relied on by the other party; and he must be deceived and caused to suffer loss," as stated by Adams, J., for the Court in Leggett Electric Co. v. Morrison, 194 N.C. 316, 139 S.E. 455. See also Berwer v. Union Central Life Ins. Co., 214 N.C. 554, 200 S.E. 1, and cases cited.

Testing the agreed facts here involved by this statement of law, some of the elements of fraud, particularly that as to fraudulent intent are lacking.

And where findings are insufficient to support the judgment, the cause must be remanded for further proceeding in conformity with direction given in Trustees of Elon College v. Elon Banking & Trust Co., 182 N.C. 298, 109 S.E. 6, 17 A.L.R. 1205. See Atkinson v. Bennett, 242 N.C. 456, 88 S.E.2d 76, and citation of cases in Strong's N. C. IndexAppeal and Error, Sec. 49, note 590. And it is so ordered.

Since the counterclaim of defendant White is predicated in the main upon the alleged *449 actionable fraud of plaintiff, the cause of action therefor is without valid basis until issue of fraud is determined. Therefore the Court's ruling that the cause must be remanded as directed on plaintiff's appeal necessitates the setting aside the judgment in favor of defendant White, and the remanding of the whole case for further proceedings as indicated on plaintiff's appeal.

On plaintiff's appeal: Error and remanded.

On defendant White's appeal: Error and remanded.

HIGGINS, J., not sitting.