[1] A challenge to the sufficiency of the evidence admits the truth of the evidence of the opposing party and requires that the evidence be interpreted more strongly against the moving party. Gray v. Wikstrom Motors, 14 Wn.2d 448, 128 P.2d 490. Our recent opinion in the case of Stenson v. Thrush, 36 Wn.2d 726, 219 P.2d 977, is in point in connection with appellant's first three assignments of error as against respondent Sander.
Such contention is without merit, for the Washington Supreme Court has set forth nine elements which constitute the definition of fraud which do not differ materially from those given in the instruction. See Graff v. Geisel, 39 Wn.2d 131, 234 P.2d 884; Gray v. Wikstrom Motors, Inc., 14 Wn.2d 448, 128 P.2d 490. Defendants requested an instruction which would authorize the jury to find fraud if the plaintiff knew that the poults sold to defendants were hatched from eggs produced by turkey hens that were diseased and did not so inform defendants, inasmuch as there would then exist a duty upon the plaintiff to inform the defendants of this fact, providing the other elements of fraud as outlined in the given instruction were found.
[1] The nine essential elements of fraud, all of which must be established by clear, cogent, and convincing evidence, are: (1) A representation of an existing fact, (2) its materiality, (3) its falsity, (4) the speaker's knowledge of its falsity, (5) his intent that it shall be acted upon by the person to whom it is made, (6) ignorance of its falsity on the part of the person to whom the representation is addressed, (7) the latter's reliance on the truth of the representation, (8) his right to rely upon it, and (9) his consequent damage. Graff v. Geisel, 39 Wn.2d 131, 234 P.2d 884 (1951); Gray v. Wikstrom Motors, 14 Wn.2d 448, 128 P.2d 490 (1942). [2] The respondents failed to establish the element designated as (8), namely, their right to rely upon the representations.
" (Italics ours.) [5] The standard basic definition of fraud is set out in Gray v. Wikstrom Motors, 14 Wn.2d 448, 455, 456, 128 P.2d 490: "The elements necessary to establish fraud are: (1) A representation of an existing fact; (2) its materiality; (3) its falsity; (4) the speaker's knowledge of its falsity; (5) his intent that it shall be acted upon by the person to whom it is made; (6) ignorance of its falsity on the part of the person to whom the representation is addressed; (7) the latter's reliance on the truth of the representation; (8) his right to rely upon it; and (9) his consequent damage."
Jones v. McQuesten, 172 Wn. 480, 20 P.2d 838 (representation as to carrying strength of building); Gray v. Wikstrom Motors, 14 Wn.2d 448, 128 P.2d 490 (representation as to retail price of an automobile). In several of the above-cited cases, the purchaser made at least a partial investigation as to the truth of the representations and was held not to have waived his right to rely on the seller's statements. For example, in Jones v. Elliott, supra, we stated that it could not be held under the facts of that case that the purchaser should have mistrusted the truth of the seller's statements.
This we held as error, and the judgment was reversed on that ground. Gray v. Wikstrom Motors, Inc., 14 Wn.2d 448, 128 P.2d 490. On retrial, the jury returned a verdict in favor of plaintiff. After a verdict, defendants made a motion for judgment notwithstanding the verdict and in the alternative for a new trial.
[1] The rule, in determining the question whether the evidence was sufficient to take the case to the jury, is that a challenge to the sufficiency of the evidence or a motion for nonsuit admits the truth of the evidence of the party against whom such challenge or motion is made and all inferences that reasonably can be drawn therefrom, and requires that the evidence be interpreted in the light most favorable to the party toward whom the challenge is directed, and most strongly against the challenging party. Gray v. Wikstrom Motors, Inc., 14 Wn.2d 448, 128 P.2d 490. [2] We have consistently held that ordinarily the question whether there has been negligence or contributory negligence is one for the jury; however, if the facts are such that all reasonable men must draw the same conclusion from them, the question of negligence or contributory negligence is then considered as one of law for the court.
RCW 74.04.300 (italics ours); cf. State v. Whitehouse, supra at 463. Standing alone, a willfully false statement, representation, or impersonation ordinarily connotes fraud, see Gronlund v. Andersson, 38 Wn.2d 60, 63, 227 P.2d 741 (1951); Oates v. Taylor, 31 Wn.2d 898, 903, 199 P.2d 924 (1948); Gray v. Wikstrom Motors, Inc., 14 Wn.2d 448, 455-56, 128 P.2d 490 (1942), rather than a thought-out plan to deceive. By its use of the word "other," we perceive the legislature to have intended the term "fraudulent device" to be liberally construed to include fraud within its meaning.