#### R. W. SIMPSON v. TOBACCO GROWERS COOPERATIVE ASSOCIATION.

(Filed 2 December, 1925.)

1. Contracts — Fraud—Misrepresentations.

In order to avoid a written contract for fraud for misrepresentations of a party or bis authorized agent, it must not only be shown that the statements complained of were false, but among other things that the party was at the time ignorant of their falsity, and was induced thereby to his damage, and he must show facts sufficient to make out a case of fraud with all the material elements required in such instances.

2. Appeal and Error — Agreement of Counsel — Pending Cases.

Where upon appeal the parties do not agree that the decision of the Supreme Court therein may abide that of another case pending, the Court will recognize a distinction between the two cases, and decide upon each case as presented by the record.

*6043. Same — Burden to Show Error — Presumptions.

The presumption on appeal to the Supreme Court is in favor of the correctness of the judgment in the Superior Court, and requires the appellant to show the error of record of which he complains.

Appeal by plaintiff from *Cranmer, J.,*at July Special Term, 1925, of ALLEGHANY.

Civil action to rescind or cancel contract between tbe parties for fraud alleged to have been practiced in its procurement.

Upon denial of any fraud, and counterclaim to recover damages for a breach of tbe contract, there was a verdict and judgment in favor of tbe defendant, tbe plaintiff having submitted to a voluntary nonsuit upon bis Honor’s intimation that tbe representations made by defendant’s agent were only promissory in character and not sufficient to avoid tbe contract. Plaintiff appeals.

*Folger & Folger for plaintiff.*

*Burgess & J oyner and Kenneth C. Boy all for defendant.*

Stacy, C. J.

The allegations upon which plaintiff seeks to avoid bis contract with tbe defendant are almost identical with those set out in tbe case of *Dunbar v. Tob. Gro. Asso., post,*608. And in tbe instant suit, tbe defendant’s former agent, Porter Wall, testifies that be made tbe representations substantially as alleged.

There was error in bolding that these representations were only promissory in character, but tbe plaintiff has failed to show any barm resulting to him therefrom. It is not made to appear anywhere on tbe record that tbe plaintiff relied on these representations to bis hurt, or that be did not know of their falsity at tbe time be signed tbe contract; nor did be offer to show facts sufficient to make out a case of fraud.

Tbe general conditions under which factual misrepresentations may be made tbe basis of an action for deceit are stated in Pollock on Torts (12 ed.), 283, as follows:

> “To create a right of action for deceit there must be a statement made by tbe defendant, or for which be is answerable as principal, and with regard to that statement all tbe following conditions must concur:

> “(a) It is untrue in fact.

> “(b) Tbe person making tbe statement, or tbe person responsible for it, either knows it to be untrue, or is culpably ignorant (that is, recklessly and consciously ignorant) whether it be true or not.

> “(c) It is made to tbe intent that tbe plaintiff shall act upon it, or in a manner apparently fitted to induce him to act upon it.

> “(d) Tbe plaintiff does act in reliance on tbe statement in tbe manner contemplated or manifestly probable, and thereby suffers damage.”

*605It was suggested on tbe argument that tbis ease should abide tbe same result on appeal as tbe *Dunbar case, supra,*but tbe facts appearing on tbe two records are not tbe same, and we find no agreement on tbe present record to tbe effect that evidence similar to that offered and excluded in tbe *Dunbar case,*should be considered as having been offered and excluded in tbe instant ease.

While tbe plaintiff probably did not attempt to make out bis case in full, because of tbe court’s intimation that tbe representations were only promissory in character, yet we cannot assume that plaintiff’s further evidence, which was not offered, so far as tbe record shows, would have been sufficient to make out a case of fraud. It does not appear that be did not know tbe provisions of tbe contract when be signed it. Error will not be presumed on appeal; it must be affirmatively established. Appellant is required to show error, and be must make it appear plainly, as tbe presumption is against him. *In re Ross,*182 N. C., 477.

We find no error of law or legal inference appearing on tbe present record, hence tbe verdict and judgment must be upheld.

No error.