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carrying capacity, and turning it into larger quantities of water then it was able to carry in that condition. “The entire pleading is "easy of comprehension, and free from reasonable doubt, which is all that is necessary.’ Salmon v. Wilson, 41 Cal. 602.” Ward v. Commissioners of Gallatin County, 12 Mont. 23, 29 Pac. 658; Greenebaum v. Taykor, 102 Cal. 624, 36 Pac. 957.

[3,4] The complaint is not open to the objections urged against it in the demurrer. If in the opinion of the defendants the complaint was not sufficiently specific to enable them to meet the evidence of the plaintiffs as to the amount of damages the breaking of the ditch caused to the property, a motion to make it more specific would have been the appropriate remedy. Marcellus v. Wright, 51 Mont. 559, 154 Pac. 714; Roberts v. Sinnott, 55 Mont. 369, 177 Pac. 252; Jorud v. Woodside, 63 Mont. 23, 206 Pac. 344. Or, had the defendants made request for a bill of particulars, it would have been a matter which the trial court, in the exercise of its discretion, could have required the plaintiffs to furnish. Rogness v. Northern Pac. Ry. Co., 59 Mont. 373, 196 Pac. 989; Bogard v. Illinois Central R. Co., 116 Ky. 429, 76 S. W. 170, 3 Ann. Cas. 160, and extensive note.

"There is no inflexible rule as to the class of cases in which a bill of particulars will be , granted, but it rests within the sound discretion of the court to be exercised only in furtherance of justice." 3 Ency. Pl. & Pr. 517.

[5] Section 9130 of our Code authorizes the plaintiff to “unite several causes of action * * * in the same complaint where they all arise out of * * * injuries to property.” Having used the word “property” in its larger sense, it will be held to include injuries to real as well as to personal property. The term “injuries to property” comprehends such injuries as one sustains in his rights of property, whether directly affecting or depriving one of possession and enjoyment of things the subject of property or not. In this class is included every form of action for an injury as distinguished from a wrong by breach of contract, except libel, slander, and malicious prosecution. Bliss on Code Pleading, $129, p. 217.

"Causes of action for injuries to property form a distinct class, and the generality of this language permits the union of claims aris"g from injuries of all kinds, whether with or without force, whether direct or consequential, *d whether to real or personal property.” # two Code Remedies (4th Ed.) $ 389, p.

[*] It appears in this case that after the *murrer was overruled, the defendants filed * answer containing only general denials. The evidence and the proceedings upon the *! are not subject to inspection, and for *ht we are permitted to say, the cause "

might have been tried upon the merits, without any objection to the admission of evidence at all. In Rooney v. Gray, 145 Cal. 753, 79 Pac. 523, the Supreme Court of Califormia upon this point said: “When a cause has been tried and a judgment rendered on the facts, in order to warrant a reversal upon the ground of error in overruling a demurrer interposed on the ground of uncertainty in the complaint, it must appear that some substantial right of the demurrant has been affected, some prejudicial error, as distinguished from abstract error, suffered by him, or he has no room for complaint.

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& For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

. 4. Replewin 3-107—Judgment to be in alter

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ilatiyê. : - Judgment in claim and delivery merely that plaintiff is entitled to immediate possession, and directing delivery thereof, is erroneous; it should be in the alternative for delivery of the property or for its value if delivery cannot be made.

Appeal from District Court, Silver Bow County; Joseph R. Jackson, Judge.

Action by the Hennessy Company against C. S. Wagner and wife. Judgment for plaintiff after overruling of demurrer to complaint, and defendants appeal. Reversed and remanded, with directions.

Walker & Walker and C. S. Wagner, all of Butte, for appellants.

John K. Claxton, of Butte, for respondent.

HOLLOWAY, J. This is an action in claim and delivery. The complaint states that at the time this action was commenced in January, 1921, the plaintiff was the owner and entitled to the immediate possession of certain household goods, particularly described; that in December, 1918, the defendants contracted to purchase the property, and executed an agreement in writing whereby they bound themselves to pay to the plaintiff $827.80 in installments, $75 in cash and $25 per month thereafter until the full sum was paid; that title to the property was to remain in the plaintiff until the purchase price was fully paid; that defendants owe a balance of $300 on the contract which they refuse to pay; that the property has not been taken for a tax, assessment, or fine, etc. It is alleged:

“That a copy of said contract mentioned herein is filed herewith and made a part hereof as fully as if written herein, and marked Exhibit A.”

To that complaint defendants interposed a general demurrer, which was overruled, and upon their refusal to plead further their default was entered, and, after a hearing, judgment was rendered, “that the plaintiff is entitled to the immediate possession of said personal property herein named and described.” Defendants have appealed from that judgment, and urge that the complaint does not state a cause of action, and that the judgment is erroneous. That the complaint does not state a cause of action in claim and delivery, or at all, is perfectly apparent.

[1] 1. There is not even an intimation that the defendants ever were in possession of the property or any part of it. The very purpose of the action in claim and delivery is to recover the possession of personal property wrongfully detained by the person against whom the action is prosecuted. Sections 9220 and 9221, Rev. Codes 1921; Gallick v. Bor

deaux, 31 Mont. 328, 343, 78 Pac. 583. It is

elementary that the action will not lie against one who is not in actual or constructive possession of the property at the time the action is commenced, and to state a cause of action the complaint must allege, not only the ownership or right of possession in the plaintiff, but that the defendant is wrongfully in possession. Hickey v. Breen, 40 Mont. 368, 106 Pac. 881, 20 Ann. Cas. 429; Chestnut v. Sales, 44 Mont. 534, 121 Pac. 481. [2] 2. The complaint fails to state the value of the property or that it has any value. Since section 9363, Revised Codes 1921, requires that the value of the property must be found, it is necessary that the complaint shall state the value in order that issue may be joined thereon if defendants so desire. Lomme v. Sweeney, 1 Mont. 584; Tucker v. Parks, 7 Colo. 62, 1 Pac. 427. [3] 3. The complaint fails to allege that a demand has been made upon the defendants for the return of the property. The written agreement referred to in the complaint is not made a part of it, and is not in the record. It may be assumed, however, that the pleader has stated its legal effect, and, if so, we have presented an executory contract or contract to purchase certain personal property— such a contract as is contemplated by Sections 7585 and 7594, Revised Codes 1921. It is only by inference that it can be said that the contract was entered into between these defend- . ants and the plaintiff; but, assuming that it was, and assuming further that possession of the property was delivered to the defendants pursuant to that contract, it would seem to follow necessarily that their possession was rightful in the first instance, and, if it was, then they could be put in the wrong only by a breach of the contract on their part, a demand for possession by plaintiff, and a refusal of the demand by defendants. There is not any suggestion in the complaint that they have not fully kept and performed the contract in all things by them to be kept and performed. It does not appear what amount they have paid on the purchase price or that they have not paid in full. The statement in the complaint “that said defendants owe a balance of $300 on said contract” is but the bald legal conclusion of the pleader. If the defendants were rightfully in possession in the first instance, then a demand for the property and a refusal of the demand are necessary prerequisites to the termination of that right of possession in them, and the creation of the right to immediate possession in the plaintiff. Campbell v. Jones, 38 Cal. 507; Davenport v. Alexander, 53 Cal. App. 688, 200 Pac. 771; Hays v. Robinson, 35 Idaho, 265, 206 Pac. 173; 23 R. C. L. p. 888, § 42; 34 Cyc. 1404, 1405. [4] 4. The judgment is erroneous in that it merely adjudges that plaintiff is entitled to the immediate possession of the property,

g-> For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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s. Trial 3-325(3)-Defendants having affirmative of every issue were properly permitted to open and close case. In seller's action for price, in which the answer denied the legal conclusion contained in the complaint that the purchase price was long past due, and pleaded as an affirmative defense that buyers were induced to enter into the contract by fraudulent representations, and had rescinded the contract on discovery thereof, and counterclaimed for damages by reason thereof, the court did not err in permitting buyers to open and close the case, under Rev. Codes 1921, §§ 9349, 10616, since the general denial of such legal conclusion did not raise an issue, and the buyers had the affirmative of every issue raised.

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representation of fact, and not merely an expression of opinion.

6. Sales &38(3)—Representation as to capacity of road construction machinery held a representation of fact. Representation by seller of road construction machinery that the machine had capacity to screen and elevate from 350 to 400 cubic yards of gravel per day held a representation of fact, and not merely an expression of opin10n.

7. Fraud 6-1 1 (I)—Seller's misrepresentations as to capacity of machinery held actionable fraud. Misrepresentations by seller of road construction machindry that the machine was fit and proper for the work for which the road contractors buying the machine desired it, and had capacity to screen and elevate a certain number of cubic yards of gravel per day, held actionable fraud, even if considered as expressions of opinion without actual knowledge of the capacity of the machine, since the seller in such case had means of information not equally open to the buyers.

8. Sales &=354(6)–Allegations held to disclose buyers' right to rely on misrepresentations.

In seller's action for purchase price, defended on the ground that buyers were induced to enter into the contract by fraudulent representations, and had rescinded the contract on discovery thereof, allegations in answer that the representations related to the character and capacity of the machine known by seller to be essential to qualify the machine to meet the needs of the buyers, that seller represented that he had knowledge of and skill and experience in the selection of such machinery, and that buyers did not have an opportunity to inspect the machine until after the purchase thereof, held sufficient to show that buyers had a right to rely on the representations, notwithstanding failure to specifically allege the right to rely thereon.

9. Sales & 354 (6)–Buyers' allegations that they relied on seller's misrepresentations held sufficient. In seller's action for purchase price, defended on the ground of misrepresentations, allegations of answer that buyers relied upon the representations held sufficient without an allegation that they believed the representations to be true.

10. Sales 3-2354 (6)–Allegations held to show that purchase was induced by seller's fraudulent representations. In seller's action for purchase price, defended on the ground of misrepresentations by seller, allegations of answer held sufficient to show that buyers were induced by the fraudulent misrepresentations to make the purchase.

| 1. Sales 6-398–Buyers induced to purchase machine by fraudulent misrepresentations could recover freight. Buyers, who were induced by fraudulent misrepresentations of seller to purchase machinery, could recover on a counterclaim, in seller's action for price, the amount paid by them for freight on the machine.

&=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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12. Pleading &34(3)–Matter necessarily Implied or reasonably inferred from direct allegation treated as directly averred. Under Rev. Codes 1921, § 9164, requiring the allegations of a pleading to be liberally construed with a view to substantial justice between the parties, a court is not permitted to read into the pleading a fact necessary to make it state a cause of action, but whatever is necessarily implied or is reasonably to be inferred therefrom is to be treated as averred directly. 13. Appeal and error &= 1078(1)–Errors not argued in brief deemed waived. Errors not argued in brief are deemed waived.

Appeal from District Court, Rosebud County; Geo. A. Horkan, Judge.

Action by the F. B. Connelly Company against Schleuter Bros., a copartnership consisting of Henry Schleuter and Otto Schleuter, Judgment for defendants, and plaintiff appeals. Affirmed.

F. F. Haynes, of Forsyth, and Nichols & Wilson, of Billings, for appellant.

Campbell & Carolan, of Forsyth, for respondents.

HOLLOWAY, J. About August 19, 1920, the plaintiff sold and delivered to the defendants a 25-ton portable screening plant, Complete, for the agreed price of $2,199.53. This action was brought to recover the purchase price, and the complaint follows the form usually employed in such cases. The answer admits all the material allegations of the complaint, and then sets forth four affirmative defenses. Issues were joined by reply and the cause tried, resulting in a verdict for the defendants. From the judgment entered thereon, plaintiff appealed. [1-3] 1. There is not any merit in the contention made that the court erred in permitting defendants to open and close the case. The defendants had the affirmative of every issue raised by the pleadings, and the burden rested upon them to produce their evidence first. Sections 9349 and 10616, Rev. Codes 1921. Their general denial of the legal conclusion contained in the complaint “that the said pturchase price of $2,199.53 is now long past due and owing from defendants to the plaintiff" did not raise an issue of fact. 2. The principal contention made is that the answer does not state facts sufficient to constitute a defense or counterclaim. Upon the trial the first and third defenses were abandoned, and we may disregard the fourth, since it is a mere repetition of the second defense, except that the second includes a counterclaim for the amount paid by the defendants for freight from Aurora, Ill., to Finch, Mont. Stripped of the great mass of superfluous words, the following allegations, in substance,

are to be found in the second affirmative defense: That at the time the machine was purchased the defendants were contractors engaged in road construction work; that they were in need of a machine which would screen gravel and elevate it for loading; that the negotiations which resulted in the sale were conducted by D. R. Petrie, the agent of the plaintiff, and by the defendant Henry Schleuter; that Petrie represented to defendants that he was skilled and experienced in furnishing road construction machinery of this character; that he knew the kind and character of machinery which defendants needed, the purpose for which it was to be employed, and all the circumstances surrounding their work; that, for the sole purpose of inducing the defendants to purchase the machine in question, Petrie willfully, falsely and fraudulently represented that the machine in question was adapted to the use for which the defendants desired to employ it, and that it would elevate, screen, and move 350 to 400 cubic yards of gravel per day for the work upon which defendants were engaged; that in fact the machine was wholly unfit for defendants' purposes and worthless to them, and would not elevate, Screen, and move more than 100 cubic yards of gravel per day, which facts were known to Petrie when he made the representations above; that defendants relied upon the superior knowledge, skill, and experience of Petrie, and upon the representations made by him when they purchased the machine; that they did not have any opportunity to examine the machine until after the purchase was made and the machine was delivered, and that, as soon as they discovered that the machine was useless for the purpose for which they intended it, they rescinded the Sale and returned the machine,

In stating the elements of actionable fraud predicated upon false representations, the authorities do not always employ the sanie terms. Local statutes are responsible for the variations to some extent, but, speaking generally, it will be found upon analysis that there is singular unanimity of views. In 26 C. J. 1062, it is said that the elements are (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intention that it should be acted upon by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance upon its truth; (8) his right to rely thereon; and (9) his consequent and proximate injury. All these elements, however, are said to be comprehended in the more general terms: Representation, its falsity, scienter, deception, and injury. 26 C. J. 1063.

In the case of Butte Hardware Co. v. Knox, 28 Mont. 111, 72 Pac. 301, where the defend

doo For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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ant relied upon false representations of the seller to defeat the plaintiff’s right to recover the purchase price of a machine, this court announced the rule that the answer must disclose with reasonable certainty the following facts: (a) That certain representations were made by the seller; (b) which the purchaser had a right to rely upon; (c) that the representations were false; (d) that the purchaser believed them to be true; (e) that he relied upon them; (f) was induced by them to make the purchase; and (g) in consequence thereof was injured. The doctrine of that case has been approved repeatedly, and has never been departed from in this jurisdiction, though the rule has not been stated in precisely the same terms on every occasion. [4] Measuring the pleading before us by that standard, we observe (a) that it is alleged directly that Petrie made the repreSentations set forth above. It is contended by plaintiff, however, that assuming the representations were made as alleged, they do not furnish a foundation upon which actionable fraud may be predicated. It is the general rule that to constitute actionable fraud the misrepresentation must relate to an existing fact or a fact which has existed, thereby excluding mere expressions of opinion. Buhler v. Loftus, 53 Mont. 546, 165 Pac. 601. An exception to the rule is illustrated in Como Urchard Land Co. v. Markham, 54 Mont. 438, 171 Pac. 274. [5] The representation that the machine in question was sit and proper for the work for which defendants desired it, was, under the circumstances pleaded, a representation of fact. In 1 Black on Rescission and CanCellation, $86, it is said:

"But, where an article is sold with knowledge that it is intended to be used for a particular Purpose, a representation that it is fit and suitable for that special purpose is not an exPression of opinion as to the future, but a representation of an existing fact.”

* The representation that the machine *d capacity to screen and elevate from 350 to 400 cubic yards of gravel per day was likeWise a representation of fact. In principle there cannot be any distinction between that *tellent and a statement that an engine Will develop eight horse power, that a car has a carrying capacity of 40,000 pounds, or * tank a capacity of 1,000 gallons. One is * as susceptible of demonstration as any of the others.

") But, assuming that the capacity of the *achine was not actually known to Petrie, *] might have been a proper subject upon which he could have expressed an opinion "h immunity to his principal within the * above, it does not follow that defendants * not stated a case of actionable fraud in "w of the relative situations of the parties

as disclosed by the answer. In 2 Pomeroy's Equity Jurisprudence, § 878, it is said:

“Whenever a party states a matter which Inight otherwise be only an opinion, and does not state it as the mere expression of his own opinion, but affirms it as an existing fact material to the transaction, so that the other party may reasonably treat it as a fact, and rely and act upon it as such, then the statement clearly becomes an affirmation of fact within the meaning of the general rule.”

This language is peculiarly applicable to this case, where the parties were not dealing upon equal terms, but where Petrie had, or was supposed to have, means of information not equally open to the defendants. Grim v. Byrd, 32 Grat. (Va.) 293; 26 C. J. 1085.

In 2 Addison on Torts (Wood's Ed.), $ 1186, note, it is said:

“The test by which to determine whether a representation is a mere expression of an opinion or a substantive fact is this: If the representation is as to a matter not equally open to both parties, it may be said to be a statement of fact as such, but if it is as to a matter that rests merely in the judgment of the person making it, and the means of deriving information upon which a fair judgment can be predicated are equally open to both parties, and there is no artifice or fraud used to prevent the person to be affected thereby from making an examination and forming a judgment in reference to the matter himself, the representation is a mere expression of an opinion.”

The text is quoted with approval in 1 Black on Rescission and Cancellation, $ 77.

[8] (b) It is not alleged specifically that the defendants had a right to rely upon the representations, and the pleading would not have been aided by including such an allegation. The rule announced in Butte Hardware Co. v. Knox, above, does not go further than to require that the enumerated elements be made to appear with reasonable certainty from the pleading considered in its entirety. Whenever it is made to appear that the statements of the seller form a part of, or are essentially connected with, the substance of the transaction as distinguished from mere expressions of opinion, commendation, or dealer's talk, and concern matters which from their nature or situation may be assumed to be within the knowledge of the seller, then it is made to appear that the purchaser had a right to rely upon them. 2 Pomeroy's Equity Jurisprudence, § 891.

It appears from the answer that the representations made by Petrie related to the character and capacity of the machine in question—elements known by him to be essential to qualify the machine to meet the needs of these defendants; that he represented that he had knowledge of and skill and experience in the selection of road surfacing machinery for work similar to that upon which the defendants were engaged, and that

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