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Jenkins v. Long

Jenkins and Another v. Long and Another

Jenkins v. Long, 19 Ind. 28 (1862)
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Court
Indiana Supreme Court · State Highest Courts
Decided
November 15, 1862
Judges
Perkins
Citations
19 Ind. 28
Headnotes
At common law, fraud could be given in evidence under the general issue; but under the code, fraud must be specially pleaded, by averring the existence of all the elements necessary to be proved-to make a fraud. If the alleged fraud consist in false representations, such representations must go to a material fact, and be made under such circumstances that the party has a right to rely upon them, and it must appear that he did rely upon them,
Summary
APPEAL from the Wayne Circuit Court.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Perkins

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Perkins, J.

Suits upon notes and a mortgage.

Answer. That the notes were given for the purchase money of a livery stable, horses, carriages, etc., and the good-will of the stable; that the owners represented that the profits of the stable were from fifteen hundred to two thousand dollars a year; whereas, they aver, that the business, instead of being from fifteen hundred to two thousand dollars a year, never cleared exceeding two hundred dollars.

To this answer, a demurrer was sustained. It will be observed that the answer is uncertain, in this, that it does not plainly appear whether the parties understood the representation to refer to gross receipts or net profits. A motion to have it made more certain might have prevailed.

John F. Kibbey, for the appellants. M. Wilson, for the appellees.

If the representation was that the profits of the business had been, and then were, fifteen hundred dollars a year, and the representation was relied on in making the purchase, and it was false, it may have been such an one as amounted to fraud; because it was a representation of a fact, and not the expression of an opinion; whereas, had the representations been that the profits would amount, in future, to fifteen hundred dollars, it would not have been a fraud, because'it would have been the expression of an opinion, and not the representation of an asserted existing fact. See Ery on Specif. Perf., chap. 12. The subject of fraud is most excellently treated in the 2d edition of Ery on Specif. Perf. But the answer, in the case at bar, was bad, for failing to aver that the purchase was made in reliance upon the representation.

At common law, fraud could be given in evidence under the general issue, or under a general plea of fraud. Cohee v. Cooper, 8 Blackf. 115 . But, under the code, fraud must be specially pleaded; and the answer of fraud must contain the averments of all the elements necessary to be proved to make a fraud; and they are that the representation must go to a material fact; must be made under such circumstances that the party has a right to rely on it; the party must rely on it, and it must be false to a material extent. See the common law forms of a special plea of fraud. 8 Chit. PI. 962. 2 Swan Pr. 742. See Mattock v. Todd, at this term.

Per Curiam.

The judgment is affirmed, with one per cent, damages and costs.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 15 cases

View all citing references →
1863–1864: 21873–1874: 21877–1878: 11879–1880: 31883–1884: 11889–1890: 11907–1908: 11941–1942: 11971–1972: 11983–1984: 11987–1988: 118632026peak 1879 · 3

Relies on it most ⓘ

  1. Puritan Manufacturing Co. v. Toti & Gradi94 P. 1022 (N.M. 1908)
  2. Davis v. Jackson22 Ind. 233 (1864)
  3. Wisconics Engineering, Inc. v. Fisher466 N.E.2d 745 (Ind. Ct. App. 1984)
  4. Pugh's IGA, Inc. v. Super Food Services, Inc.531 N.E.2d 1194 (Ind. Ct. App. 1988)
  5. Smart & Perry Ford Sales, Inc. v. Weaver274 N.E.2d 718 (Ind. Ct. App. 1971)
  6. McClellan v. Tobin39 N.E.2d 772 (Ind. 1942)

Most recent

  1. Pugh's IGA, Inc. v. Super Food Services, Inc.531 N.E.2d 1194 (Ind. Ct. App. 1988)
  2. Wisconics Engineering, Inc. v. Fisher466 N.E.2d 745 (Ind. Ct. App. 1984)
  3. Smart & Perry Ford Sales, Inc. v. Weaver274 N.E.2d 718 (Ind. Ct. App. 1971)
  4. McClellan v. Tobin39 N.E.2d 772 (Ind. 1942)
  5. Puritan Manufacturing Co. v. Toti & Gradi94 P. 1022 (N.M. 1908)
  6. Martin v. Fox40 Mo. App. 664 (1890)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

DepthCaseCited by
Cohee v. Cooper, 8 Blackf. 115 (1846) 7

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