Frayn v. Pennington

¶1It appears from the record that the defendants were induced to execute the contract upon fraudulent statements and representations of Schreiber as plaintiff’s agent, who represented to the defendants that the plaintiff had advertising contracts with prominent eastern and Portland firms, and the plaintiff admits that he never had any contract with such firms.

¶2Plaintiff alleges that he was to receive $80.88 for the first four publications, from which he would have made a profit of $51.93 and that he would receive $400 for the remainder of the contract, out of which he , would have made a profit of $270 or a profit of $231.93 on a contract of $480.88 for which, including labor and material, he asks judgment for $350.00.

¶3Among others, the court gave the following instruction:

“I instruct yon that these are the elements of fraud which the-defendants must show before you would be entitled to find a verdict for the defendants. First, that the plaintiff through Schreiber made the representations claimed by the defendants. Second, that the representations, if they were made, were false. Third, that when the representations were made, if they were made, Schreiber knew them to be' false or made them recklessly without any knowledge of their truth and as a positive assertion. Fourth, that he made the representations, if any were made, with the intention that'they should be acted upon by the defendant Pennington. Fifth, that the defendants acted *191in reliance upon sucb. representations, if they were made, and the defendants were thereby injured.

“Each of these elements must be proved with reasonable certainty and all of them must be found to exist. The absence of any one of these elements is fatal to the defense in this case.

“I have instructed you if you find from the evidence in this case that the agent Schreiber was not acting within the actual scope of his authority but was acting within the apparent scope of his authority and made the representations claimed, and if they were false under the rules which I have just given you, then the defendants would be entitled to a verdict. ’ ’

¶41, 2. The questions of fraud and of the authority of the agent Schreiber were fully and fairly submitted to the jury, which found for the defendants.

¶5The judgment is affirmed. Affirmed.