(95 Vt. 129)

GERARD et ux. v. JERRY. (No. 282.)

(Supreme Court of Vermont. Franklin. May 3, 1921.)

1. Fraud

12-Promises or representations

of intention not actionable.

Representations of intention or promises having reference merely to the future constitute no ground of action, and actions for fraud or deceit do not lie for failure to perform a promise to do something in the future which the promisor does not intend to do and subsequently refuses to do, although the promisee acts in reliance thereon to his damage.

2. Fraud 12-Representations held to refer to future not actionable.

Where a grantor reserved the use of one

room, his statement to the grantee, whereby the grantee was induced to give a deed without reservation to a third person, that he would make no claim to the premises and would claim no right therein and would confirm the sale to the third person, had reference to the future, and would not support an action for fraud. 3. Fraud (1), 12-Representations of future facts or matters of opinion not actionable.

To constitute actionable fraud or deceit, the representations relied upon must be of existing facts, and representations of facts that will exist in the future or matters of judgment or opinion, though false and intended to deceive, are insufficient.

4. Fraud ||(1)—Grantor's representation that grantee could give good title held mere opinion.

Where grantors reserved the use of one room, the grantor's statement to the grantees, whereby they were induced to convey to a third person without reservation, that the grantees were absolute owners and had the lawful right to dispose of the premises and could give a good title, was merely the statement of the grantor's legal opinion, the soundness of which was as well known to the grantees as to the grantor and did not constitute fraud.

"The said Peter and Rose Jerry reserve for their use and occupation northwest room exclusively, so long as they or either of them live or may desire to occupy the same, without any payment of rent or other consideration whatever, to be paid or rendered to the said grantee."

In February following Rose Jerry died, and in May following the plaintiffs conveyed the same premises to Fred Tourangeau and wife by warranty deed, without any reservation of the defendant's interest reserved in his and his wife's deed to the plaintiff. The Tourangeaus, shortly after the execution of the plaintiff's deed to them, learned that the defendant claimed the right to occupy the room reserved in his deed to the plaintiffs. The matter was put into the hands of an attorney by the Tourangeaus, and the plaintiff

was threatened with suit. To fix the matter up, the deed from the plaintiffs to the Tourangeaus was canceled, and the plaintiff paid them $500.

This suit is brought against the defendant charging him in tort with having made certain statements to the plaintiffs whereby they were induced to give the Tourangeaus the warranty deed that was given without reserving the room reserved by the defendant in his deed to them. The statements of the defendant upon which the plaintiffs rely as the ground of their action in tort, and which the evidence tended to show, were as follows:

"That he would make no claim to said premises; that he would claim no right therein; that he would confirm the sale of said premises to said Tourangeaus; that the plaintiffs were absolute owners, and had lawful right to dispose of said premises, and could give good and valid title and possession to said premises to said Tourangeaus without any reservation or restrictions, and free and clear from incumbrance."

It is not claimed by the plaintiffs that they can recover upon other facts than those stated above.

Action by Joseph J. Gerard and wife against Peter Jerry. Judgment for plaintiffs, and defendant brings exceptions. Reversed, and judgment rendered for defendant.

Argued before WATSON, C. J., and POWERS, TAYLOR, and MILES, JJ., and FISH, Superior Judge.

H. P. Dee and M. H. Alexander, both of St. Albans, for plaintiffs.

constitute no ground of action, and actions of fraud or deceit do not lie for failure on the part of a promisor to perform a promise made by him to do something in the future which he does not intend to do, and subsequently refuses to do, although the promisee has acted in reliance on such promise to his damage. Hunt v. Lewis, 87 Vt. 528, 90 Atl. 578, Ann. Cas. 1916C, 170.

the defendant for having failed to perform them can be maintained.

[3] To constitute actionable fraud or deceit, the representations relied upon to establish either must be of existing facts. Representations of facts that will exist in the future, or matters of judgment or opinion, though false, and intended to deceive, do not afford the basis of actionable fraud. Hunt v. Lewis, supra.

[4] The fourth clause, "that the plaintiffs were the absolute owners and had lawful right to dispose of said premises, and could give good and valid title and possession of said premises to said Tourangeaus, without any reservation or restrictions, and free and

clear of all incumbrance," was not the statement of an existing fact, and so falls under the rule above stated. It was merely the statement of the legal opinion of the defendant, the existence and soundness of which was as well known to the plaintiffs as to the defendant, and they could not have been defrauded by it.

The defendant was entitled to have his motion for a directed verdict in his favor, as well as his motion for arrest of judgment, allowed, and the court's refusal to grant those motions was error.

Judgment reversed, and judgment for the defendant to recover his costs.

(95 Vt. 81)

MONTPELIER & W. R. R. R. v. CHARLES BIANCHI & SONS. (No. 285.)

(Supreme Court of Vermont. Washington. May 3, 1921.)

1. Carriers 26-Lawful rate must be collected and paid.

The Interstate Commerce Act requires the carrier to collect, and the party legally responsible therefor to pay, the lawful rate existing at the time of shipment without deviation through mistake, ignorance, or otherwise.

2. Carriers 196-Party liable presumed to know lawful rate.

The party liable for the charges on an interstate shipment is conclusively presumed to know the lawful rate.

3. Carriers 194-Consignor primarily liable for freight charges.

As a general rule, the consignor with whom a contract of shipment is made is primarily liable for the freight charges, whether he is the owner of the goods or not, and whether or not some one else may be liable as owner or consignee.

4. Carriers 194-Bill of lading held not contract to collect charges from consignee so as to exempt consignor from liability.

A provision in a bill of lading for an interstate shipment that the owner or consignee should pay the freight and all other lawful

charges, and, if required, pay them before delivery, did not constitute a contract by the carrier to collect the freight charges from the owner or consignee, so as to exempt the consignor from liability, and the consignor was liathe consignee without collecting the full charges. ble where the carrier delivered the goods to 5. Carriers 194-Passing of title held not to affect liability for freight charges.

That title to goods vested in the consignee when loaded on the cars did not affect the consignor's liability for the freight charges where fact at time of the shipment. it did not appear that the carrier knew such

Exceptions from City Court of Montpelier; Erwin M. Harvey, Judge.

Action by the Montpelier & Wells River Railroad against Charles Bianchi & Sons. Judgment for defendants, and plaintiff brings exceptions. Reversed, and judgment rendered for plaintiff.

Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. H. C. Shurtleff, of Montpelier, for plaintiff.

Alland G. Fay, of Barre, for defendants.

SLACK, J. This case was heard below on an agreed statement of facts, judgment was for the defendants, and the case is here on plaintiff's exception to the judgment.

The material facts in the case are these: The defendants, who are granite manufacturers located in the city of Barre, some time prior to March 12, 1915, entered into a contract with Matthew & Mather, of Norfolk, Neb., to manufacture for the latter certain granite monuments to be delivered f. o. b. city of Barre. The defendants delivered these monuments to the plaintiff, loaded on cars 12, 1915, and received from the plaintiff a furnished by it, at the city of Barre, March receipt or bill of lading in the usual form which in part is as follows:

"Received, subject to the classifications and tariffs in effect on the day of the issue of the Original Bill of Lading, at Barre, Vt., March 12, 1915, from Bianchi & Sons the property de

scribed below *

that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, herein contained (including conditions on the back hereof) and which are agreed to by the shipper and accepted for himself and his assigns. * Consigned to Matthew & Mather. Destination Norfolk, State of Neb." -and was signed:

* *

"Chas. Bianchi & Sons Shipper. J. N. Gall Agent."

It also contained the further provision: "This Bill of Lading is to be signed by the shipper and the agent of the carrier issuing same"

contract and the latter on its promise implied by its ownership and acceptance of the coal."

That case was followed in Great Northern Ry. Co. v. Hocking Valley Fire Clay Co., 166| Wis. 469, 166 N. W. 41, where the consignor was held liable for freight charges, although the bill of lading contained a provision like the one before us. There, as here, the contention was that this provision was an express agreement by which the owner or consignee was made liable for the freight charges, the effect of which was to release the consignor from liability, but the court

said:

signor; and, to relieve itself from the penalty imposed by law for failure to exact the charges, if it fails to collect them from the consignee it must proceed against the consignor. This is required as a matter of public policy. It is not only the right, but the duty, of the carrier to thus collect the charges."

[5] But we are not concerned with this question, because no attempt to exempt the defendants from liability is shown. The provision in question does not, as we have seen, have that effect, but is rather for the benefit and security of the carrier. The fact that the title to the monuments vested in the consignees when the monuments were loaded on the cars has no force, it not apthe time of shipment.

Judgment reversed, and judgment for the plaintiff for $22.51 and costs.

(95 Vt. 76)

In Duncan v. United Steel Co. (D. C.) 244 Fed. 258, an action against a consignee, heard on demurrer to the complaint, the West Virginia Case was cited with approval. After reciting the material allegations in the complaint, among which was an allegation that the bill of lading contained a provision that "The owner or consignee shall pay the freight and all other lawful charges," etc., the court said:

"It is settled law that the shipper or consignor is, on the facts above stated, under a contract obligation to pay the freight charges, and that this obligation may be enforced regardless of any promise contained in the bill of lading requiring the consignee to pay or regardless of any new obligation assumed by the consignee to pay the same not amounting to an actual payment."

We have not found a case, and we doubt if one can be found, where the provision relied upon by the defendants has been given the construction which they contend for.

The plaintiff contends that "No agreement can exempt the shipper from liability," and cites in support of this proposition Georgia Ry. Co. v. Creety, 5 Ga. App. 424, 63 S. E, 528, and B. & O. S. W. R. Co. v. New Albany Box & Basket Co., supra. See, also, Cincinnati, N. O. & T. P. R. Co. v. Vredenburgh Saw Mill Co., supra, Jelks v. Philadelphia & R. Co., 14 Ga. App. 96, 80 S. E. 216, and Boise Commercial Club v. Adams Express Co., 17 Interst. Com. Com'n. R., 115, 121. In the Jelks Case it is said:

"Since the law imposes upon a carrier the absolute duty to collect freight charges, it may proceed against either the consignee or the con

(No. 279.). (Supreme Court of Vermont. May 3, 1921.)

Windsor.

1. Statutes 206-Effect must be given to all provisions.

In construing a statute, effect must be given to all its provisions. 2. Master and servant

398-Claim for compensation essential to jurisdiction.

Unless an injured employee complies with the requirement of the Workmen's Compensation Act (G. L. 5796) that he make a claim for compensation within six months after the date of the injury, or noncompliance is excused by voluntary payments of compensation, the Commissioner of Industries is without jurisdiction, in view of the provisions of G. L. 5797, 5798, 5759, 5760, 5831, and Acts 1919, No. 158, the requirement being just and reasonable.

pensation not waived. Under Workmen's Compensation Act (G. L. 5796), where it did not appear that payments of compensation had been made voluntarily, the making of a claim for compensation within six months after the accident could not be waived by offers of settlement, made during the six months, by the payment of part or all of days of disability, nor by an admission of declaimant's medical expenses for the first 14 fendant insurance company that it was liable for compensation, as the jurisdiction of the Commissioner of Industries cannot be enlarged, diminished, or destroyed by express consent, or waived by acts of estoppel.

4. Master and servant 398-Objection to want of claim for compensation seasonable.

Under Workmen's Compensation Act (G. L. 5796), requiring a claim for compensation to be made within six months after the injury, the