Whitbeck v. Sees
Whitbeck v. Sees
Opinion of the Court
At the trial of'this cause the court sustained an objection to the introduction of any evidence on the part of plaintiff on the ground that his complaint failed to state facts sufficient to constitute a cause of action. Judgment for costs in favor of defendant was entered upon a directed verdict, and plaintiff appeals.
It appears from the complaint: That two instruments in writing, bearing date February 6, 1896, purporting to be warrants, numbered 145 and 146, drawn on Hamilton school district, in Charles Mix county, for $70 and $72.50, respectively, in favor of O. A. Osmandson, were each upon that day indorsed by the respondent, in his official capacity, as follows: “The within order presented for payment this day, and the same not paid, for want of funds.' Castalia, South Dakota. Dated Feb. 6, 1896. [Signed] Jared Sees, Treasurer.” That at the same time, and oyer his official signature, he executed and delivered
The statements contained in paragraph 8, which we omit for the sake of brevity, clearly show, and the fact is not questioned, that the warrants, if as alleged in the complaint, are of no validity; but counsel for respondent maintains, in effect, that even if appellant, relying only upon the false representations contained in the certificate, was induced to part with his money, for which he received nothing, he cannot recover, for the reason that the certificate contains no more than amere expression of an opinion that the warrants were issued at the regularly called special meeting of the school board, and would be paid as soon as sufficient funds were collected into the school district treasury. Section 3507 of the Compiled Laws characterizes as actual fraud any “acts fitted to deceive”; “connivance with intent to deceive * * * or to induce another to enter into a contract”; also, “the positive assertion in a manner not warranted by the information of the person making it, of that which is not true, though he believed it to be true.” One who thereby induces another to alter his position to his detriment is liable for any damage which he thus occasions. Comp. Laws, § 3598. While it is the policy of the law to exonerate school officers, as well as other public servants, required to exercise judgment and discretion, from liability in damages occasioned by their official conduct, they must act honestly, in good faith, and within the powers conferred upon them. The execution of the certificate was not within the line of respondent’s official duty; and, if the complaint is true, its material recitals are false, and were fraudulently made, with
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- 1. Under Comp. Laws, 1 3507, characterizing as actual fraud any “acts fitted to deceive,” and “connivance with intent to deceive or to induce another to enter into a contract,” where a treasurer of a school district, confederating with another to assist him in procuring money, and for the purpose of misleading the public, indorsed upon a school warrant illegally issued that the same had been presented for payment and refused because of a lack of funds, and also officially certified that the same would be paid as soon as funds were at hand, and thereby induced an innocent purchaser to take the warrant for a valuable consideration, he is liable to such purchaser. 2. Great latitude is indulged in to sustain a complaint assailed for the first time at the trial by an objection to the introduction of evidence on the ground that the complaint fails to state facts sufficient to constitute a cause of action.