Wicks v. Metcalf

Rehearing denied April 3, 1917, Second petition for rehearing denied April 10, 1917.

On Petition for Rehearing.

(163 Pac. 988.)

Petition for rehearing denied.

Mr. Edwin 0. Potter, for the petition.

Mr. Fred E. Smith and Mr. J. E. Young, contra.

Department 1.

Mr. Justice Burnett

delivered the opinion of the court.

2. It will be remembered that the plaintiff instituted this suit to enjoin the prosecution of an action at law upon a note which she had signed with her husband and secured by a mortgage on some of his realty already similarly encumbered. The proceeds of the sale under the foreclosure of the senior lien were not sufficient to liquidate the note given to defendants in *694this suit, in consequence of which, they brought the action at law sought to be restrained: The indebtedness represented by the notes in question was overdue and was owing by the plaintiff’s husband. By giving the note with his wife’s signature he secured an extension of time for eighteen months. This was a sufficient consideration to support the new promise to pay which the plaintiff executed, whether it be considered as a matter of advantage to her husband or disadvantage to the payees.

3. The allegation of the complaint upon which the plaintiff relies to defeat the note is this:

‘ ‘ That at the time of the execution of said mortgage the plaintiff was informed by the defendants that in order to make the security good it would be necessary for the plaintiff to sign said promissory notes as well as said mortgage.”

In the amended complaint it is further stated:

“And plaintiff relying on the representations of said defendant, and not otherwise, that the execution of said promissory notes was simply for the purpose of making valid the security aforesaid, executed said promissory notes along with her said husband, Joseph Wicks.”

The averments of the complaint are insufficient as a statement of fraud inducing the plaintiff to execute the contract. It is well established in this state as a rule for pleading fraud that it must be stated that the representations were false; that the person making them knew they were false; that they were made with intent to defraud; and that the party seeking to be relieved from the fraud must have relied upon such representations: Rolfes v. Russel, 5 Or. 400; Dunning v. Cresson, 6 Or. 241; Martin v. Eagle Development Co., 41 Or. 448 ( 69 Pac. 216); Anderson v. Adams, 43 *695Or. 621 (74 Pac. 215); Wimer v. Smith, 22 Or. 469 (30 Pac. 416); Bailey v. Frazier, 62 Or. 142 (124 Pac. 643). Neither complaint conforms to this plain formula of pleading.

4. Moreover, the statement imputed to the defendants embodies merely their opinion as to the excellence of the security. It contains no representation of fact or of law. The event proved the soundness of their judgment, for if they had been compelled to rely upon the notes and mortgage without the plaintiff’s signature to the former the security would not have been good. In order to make it good it seemed to them necessary that the plaintiff should be personally bound for the payment of the debts. The defendants cannot be blamed for their well-founded opinion. It does not amount to fraud in any event. The complaint does not in truth state a cause of suit. We therefore adhere to the former opinion. Reversed. Suit Dismissed.

Rehearing Denied.

Mr. Chief Justice McBride, Mr. Justice Benson and Mr. Justice Harris concur.