Leggett Electric Co. v. Morrison, 194 N.C. 316 (1927)

Oct. 5, 1927 · Supreme Court of North Carolina
194 N.C. 316


(Filed 5 October, 1927.)

1. Principal and Agent — Contracts, Written — Lands — Deceit — Fraud— Actions.

For an electric power transmission, company to obtain a valid right with tbe agent of tbe owner, to enter upon the lands of tbe owner and erect its poles, etc., for tbe transmission of its current, it is required that tbe authority of tbe agent, to bind bis principal, must be in writing, and where tbe power company, with tbe knowledge of tbe facts, expressed or implied, has erected its poles, etc., without tbe written authority of agency conferred, and the wife, the owner of the lands, repudiates tbe acts of the husband, acting as her agent, and causes the power company to remove them from her lands, a civil action for damages founded on deceit against the husband will not lie.

2. Fraud and Deceit — Damages—Evidence.

In order to recover damages for fraud or deceit, it is necessary to show the representations, its falsity, scienter, deception and injury, in which representation must be definite, specific, materially false, knowingly made with fraudulent intent, or in culpable ignorance of the truth, reasonably relied on by the promisee, and caused the loss in suit.

Connor, J., did not sit.

Appeal by plaintiff from Nunn, J., at April Term, 1927, of Edge-combe.

Georgs M. Fountain for plaintiff.

Gilliam & Bond and H. H. Phillips for defendant.

Adams, J.

Tbe plaintiff, a corporation authorized by the laws of North Carolina to transmit electric power, entered into negotiations *317with, tbe defendant and bis wife for tbe purpose of acquiring a right of way over tbe land wbicb was owned by Mrs. Morrison. After repeated conferences between tbe parties .tbe plaintiff failed to procure tbe grant, but, as alleged in tbe complaint, tbe defendant subsequently told tbe plaintiff’s agent tbat be and bis wife bad “agreed to extend tbe right of way upon tbe condition tbat same be not bad on tbe road, but back from tbe road,” and pointed out tbe place where tbe poles should be erected. It was alleged tbat on other occasions before any work bad been done on tbe land tbe defendant held himself out as tbe agent of bis wife and said tbat it would not be necessary for tbe agent to see her because she bad approved and assented to “tbe extension of tbe right of way”; and, further, tbat tbe plaintiff, relying upon these representations, erected its poles on tbe land and was afterwards compelled by Mrs. Morrison to remove them in consequence of which it bad suffered financial loss.

Tbe action was laid in deceit and was prosecuted on tbe theory tbat tbe defendant was not bis wife’s agent. Tbe plaintiff evidently knew tbat Mrs. Morrison owned tbe land and was affected with constructive notice tbat any parol license wbicb tbe defendant gave tbe plaintiff to enter thereon was revocable at the will of tbe owner, and tbat any purported or intended grant of an easement or other conveyance of a permanent or continuing right 'in tbe land must have been evidenced by a written instrument duly executed and proved or acknowledged. McCracken v. McCracken, 88 N. C., 273; Kivett v. McKeithan, 90 N. C., 106; R. R. v. R. R., 104 N. C., 658; Herndon v. R. R., 161 N. C., 650; Davis v. Robinson, 189 N. C., 589, 600. Tbe alleged permission was not evidenced by any writing and tbe plaintiff incurred tbe hazard of Mrs. Morrison’s objection to tbe entry upon her land. Her objection was made known to tbe plaintiff and tbe poles were removed.

Tbe essential elements of actionable fraud or deceit are tbe representation, its falsity, scienter, deception, and injury. Tbe representation must be definite and specific; it must be materially false; it must be made with knowledge of its falsity or in culpable ignorance of its truth; it must be made with fraudulent intent; it must be reasonably relied on by tbe other party; and be must be deceived and caused to suffer loss. If it be granted tbat tbe allegations in tbe complaint state a cause of action tbe testimony offered by tbe plaintiff, in our opinion, is not sufficient to establish all tbe elements of actionable deceit. Tbe judgment is


CoNNob, J., did not sit.