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608 IN THE COURT OF APPEALS [I9
McLamb v. McLamb
taking of undue or unconscientious advantage of another.'
37 C.J.S., Fraud, Section 1, p. 204.
"These essential facts must appear in order to estab-
Iish actionable fraud: ' (1) a false representation or con-cealment
of a material fact; (2) reasonably calculated to
deceive; (3) made with intent to deceive; (4) and which
does, in fact, deceive; (5) to the hurt of the injured party.'
Ward v. Heath, 222 N.C. 470, 24 S.E. 2d 5."
r There are numerous statements with respect to the essential
elements of actionable fraud but there appears to be no set
standard as the case cited above indicates. It appears that in
most of the cases the court has decided that there is fraud and
has tailored a definition to the particular facts of the case. Prob-ably
the best statement, and the one in general use throughout
the nation, is found in Johnson u. Owens, 263 N.C. 754, 140
S.E. 2d 311 (1965), where it is said that fraud requires a defi-nite
and specific representation which is materially false, the
making of the representation with knowledge of its falsity or in
culpable ignorance of its truth and with fraudulent intent, and
reasonable reliance on the representation by the other party to
his deception and damage. 4 Strong, N. C. Index 2d, Fraud,
5 1, p. 43 (1968), gives this definition and at footnote 3 cites
numerous other cases which provide similar definitions.
A somewhat similar, but at the same time markedly dif-ferent,
statement as to the essential elements of fraud is set
forth by Justice Ervin in Cofield v. Griffin, 238 N.C. 377, 78
S.E. 2d 131 (1953), as follows :
" (1) That defendant made a representation relating to
some material past or existing fact; (2) that the representa-tion
was false; (3) that when he made it, defendant knew
that the representation was false, or made it recklessly,
without any knowledge of its truth and as a positive asser-tion;
(4) that defendant made the representation with
intention that it should be acted upon by plaintiff; (5) that
plaintiff reasonably relied upon the representation, and
acted upon it; and (6) that plaintiff thereby suffered in-jury."
Quoted with approval in Auto Supply Co., Inc. v. Equipment Co.,
Inc., 2 N.C. App. 531, 539, 163 S.E. 2d 510, 515 (1968).
Object Description
| Title | North Carolina Court of Appeals Reports [v.019, Spring Session 1973 - Fall Session Session 1973] |
| Creator | North Carolina. Court of Appeals. |
| Date | 1974 |
| Subjects | Law reports, digests, etc.--North Carolina; Court records--North Carolina |
| Place | North Carolina, United States |
| Description | Volume 19, Spring Session 1973 - Fall Session Session 1973. Cited as 19 N.C.App. The North Carolina Court of Appeals Reports are the official report of opinions of the North Carolina Court of Appeals. Includes cases and other information about the courts of North Carolina. |
| Publisher | Court of Appeals of North Carolina |
| Agency-Current | North Carolina Court of Appeals, Judicial Department |
| Rights | State Document see http://digital.ncdcr.gov/u?/p249901coll22,63754 |
| Collection | North Carolina State Documents Collection. State Library of North Carolina |
| Type | Text |
| Language | English |
| Format | Reports; Legal documents |
| Digital Characteristics-A | 37.5 MB; 848 p. |
| Serial Title | North Carolina Court of Appeals Reports |
| Digital Collection | North Carolina Digital State Documents Collection |
| Digital Format | application/pdf |
| Pres File Name-M | pubs_serial_courtofappealsreports_vol_019.pdf |
| Pres Local File Path-M | \Preservation_content\StatePubs\pubs_law\images_master\ |
| OCLC Number-Original | 1681248 |
Description
| Title | Page 632 |
| Full Text | 608 IN THE COURT OF APPEALS [I9 McLamb v. McLamb taking of undue or unconscientious advantage of another.' 37 C.J.S., Fraud, Section 1, p. 204. "These essential facts must appear in order to estab- Iish actionable fraud: ' (1) a false representation or con-cealment of a material fact; (2) reasonably calculated to deceive; (3) made with intent to deceive; (4) and which does, in fact, deceive; (5) to the hurt of the injured party.' Ward v. Heath, 222 N.C. 470, 24 S.E. 2d 5." r There are numerous statements with respect to the essential elements of actionable fraud but there appears to be no set standard as the case cited above indicates. It appears that in most of the cases the court has decided that there is fraud and has tailored a definition to the particular facts of the case. Prob-ably the best statement, and the one in general use throughout the nation, is found in Johnson u. Owens, 263 N.C. 754, 140 S.E. 2d 311 (1965), where it is said that fraud requires a defi-nite and specific representation which is materially false, the making of the representation with knowledge of its falsity or in culpable ignorance of its truth and with fraudulent intent, and reasonable reliance on the representation by the other party to his deception and damage. 4 Strong, N. C. Index 2d, Fraud, 5 1, p. 43 (1968), gives this definition and at footnote 3 cites numerous other cases which provide similar definitions. A somewhat similar, but at the same time markedly dif-ferent, statement as to the essential elements of fraud is set forth by Justice Ervin in Cofield v. Griffin, 238 N.C. 377, 78 S.E. 2d 131 (1953), as follows : " (1) That defendant made a representation relating to some material past or existing fact; (2) that the representa-tion was false; (3) that when he made it, defendant knew that the representation was false, or made it recklessly, without any knowledge of its truth and as a positive asser-tion; (4) that defendant made the representation with intention that it should be acted upon by plaintiff; (5) that plaintiff reasonably relied upon the representation, and acted upon it; and (6) that plaintiff thereby suffered in-jury." Quoted with approval in Auto Supply Co., Inc. v. Equipment Co., Inc., 2 N.C. App. 531, 539, 163 S.E. 2d 510, 515 (1968). |
