Ballaine v. District Court, Etc. , 107 Utah 247 ( 1944 )

I am unable to agree with the majority in holding that the information alleges facts showing the commission of the crime of obtaining money or property by false representations. That a failure to make good a representation purely promissory in character is not a violation of Sec. 103-18-8, U.C.A. 1943, this court held in State v. Howd, 55 Utah 527, 188 P. 628. See also cases cited in 35 C.J.S., False Pretenses, 646, § 8; and 25 C.J. 590. And see reason suggested for the rule at page 452 of 22 Am. Jur. and cases there cited. The majority court here is in accord, but hold that the allegations do not reveal representation of a promissory character but state a misrepresentation of an existing material fact. In reaching such conclusion I fear that the court is looking at the information in light of the evidence — something the court below could not have done in ruling on the motion to quash. The question of whether the verdict should be by us set aside because of the insufficiency of the information is another and a different question. But the question of its sufficiency is resolved here as though on motion to quash. Because I think that the whole tenor of the information is that the defendants falsely represented that they would perform in accordance with promises made and that they failed so to do, thus violating the statute; I am of the opinion that the motion to quash below was erroneously denied.

In the first place the charge is of obtaining property and money by false pretenses. But the only property parted with by Hansen, according to the information, was his used car. This was parted with, the pleading advises us, because of the "false, fraudulent and felonious representation" that defendants would in the future upon payment of the balance of the purchase price deliver Hansen a new car free and clear of encumbrances. Thus is evidenced the theory of the pleader that such a promissory representation plus noncompliance will sustain a conviction under the statute. He then alleges that a month later the defendants delivered a new car to Hansen, and that the latter, "still believing the false, fraudulent and felonious statements," paid the balance of the purchase price to defendants; "upon the fraudulent representation that — [defendants] — would immediately deliver title to [the new car] free and clear of any liens and/or encumbrances of any nature whatsoever." This last recited allegation is not at all surplusage within the intendment of 105-21-42, U.C.A. 1943. It is a definite statement of the inducement for paying over the money. What is thereby said is that Hansen, relying on the promise of the defendants theretofore made that they would deliver him a new car free of encumbrances, turned over the money upon defendants' representation then made that they would immediately deliver such title to him. This does not amount to an allegation that at the time of delivery of the new car, defendants represented — either expressly or by implication — that it was then unencumbered.

Were there an allegation in the information of such specific representation, I would be in accord with the interpretation placed upon the allegation in question by Mr. Justice WADE. For in such case we would but have to give both allegations effect by reconciling them. But I cannot agree that an allegation of a promise to deliver unencumbered title after delivery, coupled with a statement of reliance on a promise theretofore made that such would be done, is tantamount to alleging that defendants represented the title to be clear at the time of delivery.

While I am of the opinion that the motion to quash should have been sustained below, I am in accord with the holding here that the evidence adduced supports the verdict.

The evidence adduced by the state reveals that subsequent to the signing of the order for the purchase of the new car, which evidence in substance substantiated the allegations of the information relative thereto, Hansen made several inquiries of the defendants as to when he could get delivery. In the course of the conversations with them, Hansen agreed to certain modifications of the arrangement of November 20, whereby certain accessories were to be purchased by him and apparently some arrangement made as to his willingness to take a car of a different color than that earlier specified. The modifications would increase the balance he was required to pay by approximately $80. Defendants agreed to attempt to secure such car in Salt Lake City. These arrangements were made with defendants on December 23. The next day one of the defendants telephoned Hansen that he had the car for him at his place of business. Upon Hansen's arrival, Platt Ballaine went with him to the home of Stanley Ballaine, who was at his home ill. Defendants' license plates being attached to the car — presumptively dealer's license plates — Hansen asked that he be given a windshield sticker so that he might operate the car. Stanley stated that he was out of stickers but that new license plates could be procured in a few days. Stanley filled in an application blank for securing such plates and while doing so asked Hansen whom he desired to have indicated there as lienholder. Hansen answered there was no lienholder, that "it was clear," "it is in my name"; that he had got the money and did not want the application to indicate any lien. At this point I digress from the recitation of the evidence to remark that since the Ballaines had on that very day placed a lien on the car equal to the total dealer's price thereof, and that that lien was evidenced on the title certificate issued to Platt Ballaine, the lien inquired about must have had reference to any lien which Hansen may have arranged to give some third party. Moreover, the answer to the query clearly revealed to the Ballaines, however obtuse they might be, that Hansen believed he was then andthere getting a car title to which was unencumbered. Whether this question was asked by Stanley prior to or after the delivery of Hansen's check for the balance of the cash purchase price is not clear from the evidence, but as I view the matter it is immaterial.

During the course of this transaction at Stanley Ballaine's home, Hansen stated that he wanted to pay the taxes on the car and asked that a bill of sale be executed to him. Stanley Ballaine answered that he had no bill of sale forms, but would give him a paper which would enable him to take care of the taxes. Whereupon he wrote on a piece of paper a description of the car and an acknowledgment of receipt of a check for $541.38 as payment in full therefor, and after signing it gave it to Hansen.

The conduct revealed by the foregoing recital is such as to justify a jury concluding that the defendants "knowingly and designedly, by false and fraudulent representations or pretenses," obtained from Hansen money with intent to cheat or defraud him thereof. I assume that had defendants, at the time of delivery of the car, stated to Hansen, in order to induce payment of the balance of the purchase price, that the vehicle was free and clear of encumbrances, no contention would be here made that such was not a false representation within the statute. To hold that their conduct on the occasion, viewed in the light of the previous transactions, was any less such misrepresentation would require reading into the statute a limitation not therein expressed.

Assuming that the conduct was with intent to defraud — which a jury might well find — there is no difference between such conduct and an oral or written representation, as evidence of what was in the minds of the defendants, what their objective was, what was the understanding of the other party to the transaction or what induced the payment of the money.

That there may be an implied as well as express representation of a past or existing fact under the statute in question, we have heretofore held. State v. Jensen, 74 Utah 527, 280 P. 1046. And see Brennan v. State, 141 Neb. 205, 3 N.W.2d 217;People v. Mace, 71 Cal.App. 10, 234 P. 841; Commonwealth v. Harper, 195 Ky. 843, 243 S.W. 1053, 1055, and People v.Etzler, 292 Mich. 489, 290 N.W. 879.