Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1921-11-09
referee DECIDES IN FAVOR OF
|. KENNEbEC HOUSING CO. AGAINST
BARTON, WATERv|LLEF0 FOR $1,000

cieS of the corporation were vlgOr-
ously discussed. The real contention
of the defendant. however. upon
which according to his own testi-
mony, he appeared to base his de-
Tense, was that his signature to the
! pledge card was obtained through
fraud and deceit. My findings are
based upon the issues of fact involved
| in question of fraud and deceit, al
| though defendants counsel, in
| lengthy, elaborate and learned argu-
ment presented legal defenses upon
which I do not pass in making this
! finding.
| Since the defendant alleges fraud
and deceit, 1t is enculnbent upon him
to prove the same by evidence that
! is strong and satisfactory clear and
, convincing" Fraud is neNer to be
presumed; it must always be proved
| In this case the defendant lies upon
false representations made by the of
ficcrs of the company whereby, as he
says fraud was perpetrated which re-
F. lievcs him from obligations contained
| in his pledge card. AS to proof of
the elements which constitute fraud
| the accepted rule in this state is that
! the evidence must show that the false
Demonstrations WCrs made with tho in
! tent that the person defraCded should
act upon them or IN such manner
! as would naturally induce him to act
| upon them; that the representations
| were false and known by the person
making them to be false; or being Of
matters susceptible of knowledge they
were made as of fact Of the knowl-
| edge of tho one making them: tha>
they were Misrepresentation CT past
or existing facts, and not expressions
Of opinion; that They were material:
that the person claiming fraud relied
on those representations, was thereby
induced to act and did act, ard that
he was thereby deceived and injured
Every one of these elements must pc
proved in order to make out a case
of fraud.
| 1t would serve no useful purpose
for the referee to enter upon dis
cussion of the evidence to an extent
sufficient to cover all of the testimony
! given.
! AS we have already said the move
lmcnt which resulted in the organiza-
| ton of the Kenncbec Housing Conn
pany appears to have been a COM
immunity spirit to enlarge housing IA
! cilitics in Nvaterville especially and
| thus afford n stimulus for a large
lpopulation>and an increased volume of
| business.
. The defendant was a resident of
Walprvilio. business man Of Ions
and varied experiences and manifestly
d, interested in the growth and prosper
ity of the city of which he was a resi-
dent and in which he was doing bust
mess.
Whatever testimony may appear
whom suit is being vigorously, defend
| ed, it appears to the referee hat the
real induccmcnt to sign the pledge
card was a community interest rather
than because highly successful bust
mess venture was expected. Hence tho
| tcstimonN+ leaves the impression
strongly Apon my mind that it was
! not by re&son of representations ma lc
lby office of the company to the de-
! PENDANT Of a fraudulent nature that
.. he signed the pledge card but that
the moving influence WAS the COM
munity spirit, Hence. | am unable to
hold that this defendant was induced
to act by reason of representation of
the plaintiffs agents whether they
rwere in fact. true or false.
As the defense of fraud has failed.
I find for the plaintiff and direct that
| judgment for the plaintiff be entered
| in the sum of $1,000: that interest on
$3.50 be rcckoned from January IS.
1920, and interest on $3.50 from Feb
ruary 81. 1920.
Plaintiff is also to recover for one
| fifth Of the fees of witnesses for plain
tiff, viz. sG.3t.
NAEREN c. PHILBEOck
Referee.