#### STATE v. R. W. MAYER.

(Filed 2 January, 1929.)

False Pretense — Criminal Responsibility — Elements of Crime.

The seller of merchandise may not be convicted of procuring the sale by false pretense when the buyer acted independently in having the articles examined and agr.eed upon a lower price than the one first offered by the seller and knowingly concluded the contract upon that basis, one of the essential elements of the crime being lacking to create the offense, that the false representations must actually deceive and defraud the buyer.

CeimiNal action, tried before *Moore, J.,*at February Term, 1928, of Madison.

Tbe defendant was charged with tbe crime of false pretense, arising out of tbe sale of certain logging equipment, rails, etc., to tbe Southern Iron & Equipment Company.

Two elements of false pretense charged in tbe bill of indictment were:

1. False representation made by tbe defendant to tbe purchaser to tbe effect that be bad paid $32,000 for tbe equipment.

2. False representation to tbe effect that tbe quantity of rails included in tbe sale amounted to 23 track miles of rail.

Tbe evidence tended to show that in tbe early part of October, 1925, tbe defendant approached the Southern Iron & Equipment Company of Atlanta, Georgia, for tbe purpose of selling to said company certain logging equipment consisting of machinery and rails of a logging road. The defendant represented that be was tbe owner of all of said property, and that be bad paid therefor tbe sum of $32,000. Tbe defendant further represented that tbe rail which be was offering to sell amounted to 23 track miles. Tbe proof offered at tbe trial disclosed that tbe defendant instead of paying $32,000 for said property, bad paid therefor only $21,500: It was also disclosed that tbe rail, instead of amounting to 23 track miles, measured out only 15.5 track miles.

On 12 October, 1925, tbe plaintiff wrote tbe Southern Iron & Equipment Company at Atlanta, stating: “Tour Mr. Corbett and I estimate there to be three miles of 70-pound rail and 20 miles of 56-pound rail, railroad weight to be accepted, connecter, switches, etc., to be weighed in.”

On 19 October, 1925, tbe defendant wrote tbe Southern Iron & Equipment Company a letter containing, among other statements not pertinent, tbe following: “Tbe rails and accessories estimated as approximately two thousand tons. You accepting same, where is and as is, at price $15.00 per gross ton of 2,240 pounds. If tbe estimated tonnage of two thousand tons, which is tbe basis of this agreement, should be *455more, according to tbe railroad weights, as shipment is made, then you are to pay me an additional amount, at the rate of $15.00 per ton of 2,240 pounds, and if the tonnage should be less than two thousand tons, then I am to pay the difference to you at the same rate.”

On 9 November, 1925, the defendant executed and delivered to the Southern Iron & Equipment Company a bill of sale for “all rails, switches, frogs, spikes and accessories,” etc. This bill of sale did not mention tonnage or track miles. On the same day, to wit, 9 November, the defendant made a supplemental agreement with the purchaser, conveying to the purchaser certain flat cars and miscellaneous scrap, “to apply to any shortage in weight of the personal property this day also conveyed by said party of the first part to the party of the second part of the approximate tonnage of 1,750 tons of rail and track accessories,” etc.

The evidence further disclosed that the Southern Iron & Equipment Company, sent its representative and inspector to examine the property included in the sale. The rails were piled in 14 separate piles just as they had been unloaded from the cars by the Laurel River Logging Company. The inspector of the purchaser made three trips to examine the rails and to count them. He testified: “I had all the opportunity I wanted to count these rails at that time. I was there with Buck Landers. Buck Landers told me there were only 15 miles of rail. I employed him to help me count the rails. He did not tell me he was familiar with that railroad. He told me that it was his opinion that there were 15 miles of rails. "We spent probably an hour and a half or two hours at that time marking the rails. Mr. Landers and I chalk marked as many rails as we could. I counted them. I do not know how many I counted at that time. ... As a result of my visits and my making investigations, I changed that contract from approximately 2,000 to approximately 1,750 tons, and made a new contract on 19 November, three weeks afterwards. I had three weeks from the first time I came to make any investigation I wanted to, and I made three trips up here. ... In that written contract there was not a word said about mileage, but verbally there was. While we had two written contracts, I did not put anything in either about mileage, because it was based on a tonnage basis.”

With respect to the alleged representation, that the defendant had paid $32,000 for said property, the agent and representative of the Southern Iron & Equipment Company testified as follows: “It was the agreement that we would not complete the trade until we saw that contract. (Contract between Laurel River Logging Company and Mayer.) I saw on the face of that contract that Mr. Mayer was paying only $21,500 at that time. I remarked to him that he was making *456a very nice profit, a couple of hours later, after tbe deal was closed. In tbe face of tbe fact that "I knew be bad not paid but $21,500, before tbe contract was closed, I swore before tbe grand jury that we were deceived in that be bad told *me*that be bad paid $32,000, because be bad told me tbat be bad paid $32,000, because I bad not seen tbe papers until they were out of my bands. Tbey were in tbe bands of our lawyer.”

Tbe defendant was convicted and sentenced to serve a term of not less than five nor more than eight years in tbe penitentiary, from which judgment be appealed, assigning errors. •

*Attorney-General Brummitt and Assistant Attorney-General Nash for the State.*

*B. B. Williams and Varser, Lawrence, Proctor & McIntyre for defendant.*

BkogdeN, J.

“Tbe constituent elements of tbe offense of false pretense are: (1) Tbat tbe representation was made as alleged; (2) tbat property or something of value was obtained by reason of tbe representation; (3) tbat tbe representation was false; (4) tbat it was made with intent to defraud; (5) tbat it actually did deceive and defraud tbe person to whom it was made.” *S. v. Johnson,*195 N. C., 506; *S. v. Roberts,*189 N. C., 93, 126 S. E., 161; *S. v. Carlson,*171 N. C., 818, 89 S. E., 30.

The record in this case contains many assignments of error. Tbe defendant duly made a motion of nonsuit, contending tbat tbe evidence, viewed in its most favorable light, clearly disclosed tbat tbe Southern Iron & Equipment Company, in purchasing said rails from tbe defendant, was not deceived or misled by tbe representations made by him for tbe plain reason tbat all of tbe evidence tended to show tbat tbe purchaser of said property, through competent and expert agents, made a thorough and independent investigation of tbe quantity and quality of tbe property included in tbe sale. Tbe principle of law involved in this aspect of the case is clearly stated as follows in *Patton v. Fibre Co.,*194 N. C., 765, 140 S. E.,, 734: *“It is*well settled tbat one cannot secure redress for fraud where be acted in reliance upon bis own knowledge or judgment based upon independent investigation. This rule is said to be especially applicable where tbe representee’s investigation was undertaken at tbe suggestion of tbe representor.”

Tbe evidence further discloses tbat tbe contracting parties abandoned tbe mileage .basis and adopted a tonnage basis upon which to consummate tbe transaction. Indeed, after tbe tonnage basis was adopted, tbe agent of tbe purchaser, as a result of bis investigation, reduced tbe estimate of 2,000 tons made by tbe defendant to 1,750 tons.

*457Tbe evidence is plain and unmistakable. Tbe purchaser knew before tbe contract was closed tbat tbe defendant was not paying $32,000 for said property, and tbe purchaser further knew, or bad sound reason to believe, tbat tbe estimate made by tbe defendant was too high, and for this reason insisted tbat tbe amount of rail be reduced.

It is useless to set out an array of authorities or to pyramid quotations therefrom. Tbe purchaser made tbe contract with bis eyes wide open, and after a complete and thorough independent investigation, and cannot now invoke tbe aid of tbe criminal law to repair an error of judgment in making a bad bargain.

Tbe motion for nonsuit should have been allowed, and it is so ordered.

Eeversed.