Whitaker v. Wood

128 S.E.2d 753 (1963)

258 N.C. 524

Ulyses WHITAKER and wife, Rita E. Whitaker, v. J. G. WOOD and wife, Clarice N. Wood.

No. 667.

Supreme Court of North Carolina.

January 11, 1963.

Blalock & Swanson and C. Orville Light, Pilot Mountain, for plaintiff appellants.

Barber & Gardner, Dobson, for defendant appellees.

*754 BOBBITT, Justice.

The essential elements of actionable fraud are well established and need not be restated. See Cofield v. Griffin, 238 N.C. 377, 78 S.E.2d 131, 40 A.L.R.2d 966; Roberson v. Williams, 240 N.C. 696, 83 S.E.2d 811; Keith v. Wilder, 241 N.C. 672, 86 S.E.2d 444.

Since there must be a new trial, we refrain from a discussion of the evidence presently before us. Tucker v. Moorefield, 250 N.C. 340, 342, 108 S.E.2d 637, and cases cited. Suffice to say, this Court is of opinion that, applying the principles of law stated in the cited (Cofield, Roberson and Keith) cases, the evidence, particularly the testimony of feme plaintiff, when considered in the light most favorable to plaintiffs, was sufficient to require submission of the case to the jury.

Citing Calloway v. Wyatt, 246 N.C. 129, 97 S.E.2d 881, defendants contend, assuming they made positive representations as alleged, the action is barred because of plaintiffs' negligent failure to make inquiry at the ASC Office of Surry County as to whether defendants, incident to the conveyance of the farm for which plaintiffs were negotiating, could legally transfer to plaintiffs a tobacco allotment of four acres. According to their testimony, plaintiffs knew nothing of the details of the tobacco allotment program. Feme plaintiff testified defendant J. G. Wood told her he had altogether, with his other farms, a tobacco allotment of "around 17 acres"; that his tobacco allotment was not subdivided but was under one farm program; that "he would take four acres out and let it go with this farm"; and that "(h)e kept insisting and telling (her) that on both occasions that (she) met him at the farm, and at the office." In view of this and other testimony, we are of opinion and hold that whether plaintiffs reasonably relied upon defendants' representations was a question for jury determination.

Although inferences may be drawn from the evidence sufficient to support a finding that feme defendant owned some interest in the land conveyed, what interest, if any, was owned by feme defendant does not clearly appear. The evidence presently before us, while it tends to show she was present when certain representations were made by her husband, fails to show any of the alleged representations were made by her. Hence, at the next trial it is appropriate that evidence as to what interest in the land, if any, was owned by feme defendant be fully and clearly developed.

The judgment of involuntary nonsuit is reversed.

Reversed.