On appeal from Superior Court, Law Division.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant and Burling. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Burling, J. Vanderbilt, C.J., concurring in result.
This is an appeal by the defendant from a judgment of the Superior Court, Law Division, entered in favor of the plaintiff pursuant to a jury verdict. The appeal, addressed to the Superior Court, Appellate Division, has been certified on our own motion.
The claims for relief are set forth in the complaint which consisted of four counts. The facts upon which the claims are based emanate from a desire of the plaintiff, who had been a truck driver for the Franklin Lakes Dairy, to purchase a milk route operated by the defendant. The milk served by the defendant was formerly purchased by the defendant from the said Franklin Lakes Dairy but for a period of approximately six months immediately prior to the transaction in issue was purchased by the defendant from another dairy known as Ideal Farms. The transaction contemplated the sale to the plaintiff of all of the home delivery milk business served by two trucks operated by the defendant but only one of the trucks was to be included in the sale. A verbal contract was entered into between the parties and the purchase price was $10,000. A check for $5,000 representing one-half of the purchase price was paid by the plaintiff to the defendant on August 25, 1947. The balance of the purchase price was to be paid on September 15, 1947, at which time all books and accounts were to be turned over to the plaintiff by the defendant. During the period intervening between the date of the initial payment and September 15, 1947, the time fixed for
the closing of the transaction and the transfer of title, the plaintiff rode each day on one of the milk trucks, being driven by the defendant's driver, for the purpose of learning the route.
The complaint contained four counts and each count sought as damages the sum of $5,000, being the amount of the initial payment, together with interest thereon. During the presentation of the plaintiff's case the second and third counts of the complaint were stricken on motion of the defendant and by consent of the plaintiff. At the same time the defendant moved that the plaintiff be required to make an election between the first and the fourth counts; this motion was denied and the defendant moved to dismiss the fourth count on the ground that the probata did not follow the allegata. The motion was denied. At the close of the plaintiff's case a motion was made to dismiss the fourth count on the ground that it sounded in deceit and that the alleged representation contained therein was a promise to do something in the future and did not allege a cause of action as a matter of law. A reservation of the right to object to the legal sufficiency of this count was contained in the defendant's answer. The motion was denied. At the close of the entire case, motions were made by the defendant for a directed verdict. These motions were also denied. The case was submitted to the jury on the first and fourth counts. The jury returned a verdict in favor of the plaintiff for $5,000, with interest thereon from August 25, 1947, and a verdict of no cause for action on a counterclaim filed by the defendant in which damages in the sum of $5,000, being the balance of the purchase price, were sought on the premise that the plaintiff had breached the contract.
The focal point of contention was surrounded by disagreement as to the nature and effect of the alleged inducements which caused the plaintiff to enter into the contract of purchase.
Analysis of the complaint is necessary to an understanding of the problems presented by the appeal. Each of
the first and fourth counts alleged a termination of the contract by the plaintiff and demanded from the defendant the sum of $5,000 with interest thereon from August 25, 1947. The first count alleged that the milk route "was represented by defendant to plaintiff to consist of a home delivery milk route with an average daily business of not less than 550 quarts of milk during the winter months, and not less than 900 to 1,000 quarts per day during the summer months;" that "Plaintiff believed and relied on the representation made by defendant to plaintiff, as aforesaid," and that "The representation made by defendant to plaintiff, on which plaintiff relief, as aforesaid * * * was false and untrue and was made by said defendant to plaintiff, knowing that the same was false and untrue and intending that plaintiff should rely thereon, and the plaintiff did rely thereon, as aforesaid." Thus the allegations of the first count contained the five necessary elements to maintain an action for deceit as delineated by the pertinent landmark cases in this state. Byard v. Holmes, 34 N.J.L. 296 (Sup. Ct. 1870); Plimpton v. Friedberg, 110 N.J.L. 427 (E. & A. 1933).
The gravamen of the action in the first count is clearly grounded in tort for deceit. Where a party has paid money on a contract entered into through fraudulent misrepresentation, he may maintain an action for deceit against the person guilty of the fraud and seek as damages the return of the money paid thereunder. Puder v. Smith, 104 N.J.L. 148 (E. & A. 1927).
The defendant does not question the propriety of the action under the first count but grounds his first point of appeal on the premise that the evidence of representation was not definite and specific but rather that it was loose and vague and that it did not support the first count as a matter of law. Specifically, he contends that the complaint, in referring to the defendant's alleged misrepresentation of the quantity of milk served by the route, charged that the defendant ...