
    Strauss v. Boyd et al.
    
      Fraud — Evidence necessary to recover therefor — Directed verdict — Testimony of plaintiff considered as true, when— Question for jury — Defendant’s misrepresentations as to goods transferred.
    
    1. To establish fraud, it must be shown that false representations, made with intent to deceive, were acted on, and that damages resulted therefrom.
    2. On appeal from directed verdict for defendant, testimony of plaintiff must be considered as true.
    3. Plaintiff’s testimony as to defendant’s misrepresentations relative to goods in transfer of cafeteria held to raise question for the jury.
    (Decided May 28, 1925.)
    Error: Court of Appeals for Summit county.
    
      Mr. J. B. Dworken and Messrs. Lahrmer & Hadley, for plaintiff in error.
    
      Messrs. Benner, Harter, Walker & Watters, and 
      Messrs. Commins, Brouse, Englebeck & McDowell, for defendants in error.
   Young, J.

The parties in this court stand in the same relation to each other, plaintiff and defendants, as in the court below, and will be referred to accordingly.

This action is based upon alleged fraud and misrepresentation on the part of the defendants in the transfer of a cafeteria or restaurant from the defendant Agnes Boyd to the plaintiff, Abe Strauss.

It appears from the record that on the 23d day of October, 1922, the defendant Agnes Boyd assigned to the plaintiff all her interest in a certain lease in and to said restaurant or cafeteria in the basement of the Metropolitan Five to Fifty Cent Store, the other defendant herein, and located at 116-117 South Main street, Akron, Ohio. The case was tried to a jury, and, at the conclusion of the plaintiff’s testimony, the court, on motions of defendants, directed a verdict in their favor. Upon the overruling of the motion for new trial, error was prosecuted to this court, and the only error relied upon is the directing of a verdict for defendants.

The petition sets up the consideration given by plaintiff to defendant Boyd for the restaurant, and alleges that certain false statements and representations were made to plaintiff by defendant Boyd, and by one L. H. Boltz, as manager, and agent for defendant Metropolitan Stores, as to the income derived from said business then conducted by defendant Boyd, as an inducement to purchase said restaurant. It is also alleged that misrepresentations were made as to the quantity, quality, and value of certain canned goods, other foods, and stock of goods on hand, and which passed by transfer or purchase of such place of business. Answers were filed by defendants, admitting certain allegations and controverting others.

The testimony of the plaintiff in this case, as disclosed by the record, is quite extended, and an attempt is made to show, and it is contended, that the Metropolitan corporation is bound by any false statements or representations made by said Boltz in reference to the transfer of the restaurant. It is also contended by plaintiff that Boltz, the manager of the defendant company, represented to him that the defendant Boyd had a 14-year lease on the premises, and that by reason of such statements he was induced to purchase the restaurant.

It is a familiar adage that fraud is easily alleged, but difficult to prove. In order to establish fraud, it must be proven that false representations were made; that they were made with the intention of deceiving or defrauding; that the fraudulent representations were acted upon by the party to whom they were made; and that damages resulted therefrom.

It is also contended by plaintiff that Boltz was the agent of the defendant company, and therefore whatever representations he made bound the company. Without going into the question in detail as to the law governing principal and agent, suffice it to say that we have been unable to find anywhere in the record where Boltz had any authority to bind his principal in this transaction, and there is no evidence tending to show, or which would be construed as showing, that he acted within the scope of his authority, if he did in fact make any false representations.

Plaintiff also contends that the quantity, quality, and value of the canned goods, foods, and stock of merchandise, taken by him as part consideration for the restaurant, were misrepresented by defendant Boyd. On this point we call attention particularly to the testimony of the plaintiff, which, for the purposes of this court, must be considered as true on a directed verdict. This testimony is uncontroverted, and, whether the testimony be true or untrue, it raises an issue of fact which should be submitted to the jury. The law is well settled that if the evidence tends to prove the allegations of the petition it is a question for the jury, and it would be erroneous for the court to direct a verdict.

Judgment will therefore be reversed and a new trial granted as to defendant Agnes Boyd; judgment affirmed as to the defendant Metropolitan Stores.

Judgment accordingly.

Richards, P. J., and Williams, J., concur.

Judges of the Sixth Appellate District sitting in place of Judges Pardee, Funk and Washburn, of the Ninth Appellate District.  