On appeal from the District Court of the city of East Orange.
For the plaintiff-appellant, Charles Blume.
For the defendants-respondents, David H. Stemer.
Before Justices Case and Donges.
The opinion of the court was delivered by
CASE, J. Tremper is a notary public. As such he certified the acknowledgment, appended to an assignment running from Nancy Lou Tucker to her husband, J. R. Tucker, now deceased, of a bill of sale of an automobile; and Heller and Bourquin signed their names as witnesses to the execution of the assignment. Plaintiff later, and as a separate transaction, loaned money to the assignee in reliance upon the validity of that document, and, upon being informed by Mrs. Tucker that she had neither signed nor acknowledged the instrument, brought this action for damages. The complaint, which contains two counts, the first purporting to ground in fraud and the second in negligence, was struck as not setting forth a cause of action. Plaintiff appeals.
The substance of the case pleaded against Heller and Bourquin is that they had, in the transaction between the Tuckers, wherein plaintiff was not a party, witnessed a signature purporting to be that of Nancy Lou Tucker which was not in
truth such. That bare fact does not set up a duty to plaintiff and does not show either fraud or actionable negligence. Although the first count is said to be grounded in fraud, it nevertheless contains no specific averment of fraud against these defendants and no allegations from which fraud by them may be reasonably inferred. We find that neither the first nor the second count stated a cause of action against them.
As to Tremper. The motion to dismiss the state of demand admits the facts that are well pleaded. It does not admit conclusions of law simply because such are stated in the pleading. The first count, relied upon as grounded in fraud, does not contain a well pleaded charge of fraud. The count, having alleged that plaintiff is a small loan company and that Tremper holds himself out to be, and is, a notary public of the state, proceeds:
"3. The said defendant, Alton G. Tremper, on January 14th, 1935, did fraudulently purport to witness and represented that they did witness the signature of Nancy Lou Tucker on an assignment of bill of sale of an automobile whereby the said Nancy Lou Tucker was the seller and J. R. Tucker was the buyer; when as a matter of fact, the said Nancy Lou Tucker did not sign said assignment, and was not personally present when the acknowledgment and witnessing of her purported signature took place." It is clear from the assignment, annexed as a schedule to and made a part of the pleading, that Tremper did not "purport," either fraudulently or otherwise, to witness, did not represent that he had witnessed, and did not represent that anyone else had witnessed, the signature of Mrs. Tucker. One is left to guess who are meant by the word "they." If one were permitted so to do he might guess that the reference is to the co-defendants, Heller and Bourquin, or to them and Tremper; but even if these names be substituted for the pronoun, we have that which states a factual situation wholly at odds with the instrument sued upon.
We deem it proper to observe that the data imprinted upon the assignment unmistakably identifies it as issued by or under the direction of ...