The opinion
BURNETT, J.,
Dissenting. It appears from the
complaint that at all the times mentioned therein the
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defendant was president of the First State and Savings Bank of Klamath Falls, Oregon, in which, on January 28, 1922, and for a long time prior thereto, the plaintiff had on deposit $3,057.11. The pleading goes on to state in substance that about ten days prior to the date last mentioned the plaintiff demanded his money from the defendant but the latter falsely and fraudulently stated to the plaintiff that the bank was not insolvent and was not in a failing condition, but that it was then and there solvent, was strong financially, and then and there had funds sufficient and adequate to meet any and all demands and obligations outstanding against said bank, and particularly that said bank was possessed of sufficient moneys to.pay plaintiff the sum he had on deposit therein. It is said likewise that the plaintiff stated to the defendant his reasons for wishing to withdraw his money, to wit: That he had heard rumors that said bank was insolvent and in a failing and insolvent condition, whereupon the defendant urged him to leave his money in the bank. It is charged that the defendant knew his statements were false; “that is to say, the said J. W. Siemens, defendant herein, then and there well and personally knew that the said First State & Savings Bank was then and there in truth and fact insolvent and in a failing* condition, and could not meet its current obligations.”
The plaintiff avers that he believed the statements of the defendant and refrained from withdrawing his money, no part of which has ever been paid to him by anyone. A general demurrer to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action, was sustained and as the result thereof the action was dismissed, whereupon the plaintiff has appealed.
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In accord with numerous precedents on this subject, Mr. Justice Bean, in
Wheelwright
v.
Vanderbilt,
69 Or. 326, 328 ( 138 Pac. 857 ), wrote thus:
“To constitute actionable fraud it must appear: 1. That defendant made a material representation; 2. that it was false; 3. that when he made it he knew it was false, or made it recklessly without any knowledge of its truth, and as a positive assertion;
4.
that he made it with the intention that it should be acted upon by plaintiff; 5. that plaintiff acted in reliance upon it; and 6. that he thereby suffered injury. Each of these facts must be proved with reasonable certainty, and all of them must be found to exist. The absence of any one of them is fatal to recovery.”
If the plaintiff could have got his money from the bank at the time the representations were made, then they were true and hence not fraudulent. For anything stated in the complaint their truth is not impeached by the fact that ten days afterwards the bank became insolvent and closed its doors. On the other hand, if, as stated in the complaint, the bank “was then and there in truth and fact insolvent and in a failing condition, and could not meet its current obligations,” the damage to the plaintiff had already happened, his money was lost and the statements imputed to the defendant could not and did not operate to enhance his damage or change his position for the worse.
The complaint fails to meet the sixth specification in the precedent laid down by Mr. Justice Bean. It does not show that the plaintiff suffered injury on account of anything said by the defendant. The judgment rendered on the demurrer was correct and should be affirmed.
McBbide, C. J., concurs in this dissenting opinion.