I find myself unable to agree with the majority, and therefore respectfully dissent.
The majority opinion is based upon the theory that there was a fiduciary relationship between the defendant and plaintiff. There is no basis at all in the pleaded facts for the conclusion that this relationship existed at the time he made the false representations to her and procured the money. The fact is, he was an *Page 385 entire stranger to her. Apparently he was not in any way, shape or form related to her as an agent or in any representative capacity. He came to her as a promoter and talked her into investing her money in the project that he was promoting, and all the representations he made at that time could not have been made as her agent. The conclusion reached is a very laudable one, but it is fundamentally unsound. The plain language of the petition is based on fraudulent representations of this promoter, and not on the fiduciary relationship or that he was her agent.
Under this state of facts I believe the trial court was right, and I would affirm the judgment of the lower court.