Sparman v. . Keim

Finch, J. The plaintiff was nonsuited upon the ground that the cause of action stated in his complaint was for a tort and rested upon allegations that his money was obtained from him by the false and fraudulent representations of the defendant. If that is the true and only proper construction of the complaint the nonsuit was right, for no false representations as to facts were either alleged or proved. Those alleged were only that the artistic decorating business, into which the plaintiff was invited to put his capital, “ would yield large profits,” and the only representation proved was “ that it was a good paying business.” The representations were promissory and matter of opinion, and had respect to the developments of the future. There was nothing in them on which to found an action ex delicto. But we do not think that is a just or proper construction of the complaint. It alleges no facts to sustain an action for a tort, but does allege facts sufficient to sustain an action on contract. Its allegations are these: that the plaintiff is an infant; that he loaned and advanced to the defendant various sums of money, amounting to $401.95; that thereafter defendant, by false and exaggerated representations of the profitable nature of his busin jss, induced the plaintiff to become his partner; that plaintiff was thereby induced to agree to put $1,000 as capital into the business; that he did so by allowing the previous loan to be applied on his share of capital, and paying the balance in cash; that, becoming satisfied of the falsity of the representations, he demanded his money back, which was refused; wherefore he demands judgment for $1,000. These allegations make a good cause of action *250 on contract. The pleader may not have so intended, and he is certainly wrong in insisting that the mere numbered paragraphs of his complaint 'were so many separate counts or causes of action. But there is one and only one cause of action stated in the complaint. It fails to furnish ground for a recovery in tort, but does furnish facts to sustain an action on contract. Almost all of the contracts of an infant are voidable and liable to be rescinded. This contract was of that character. (Millard v. Hewlett, 19 Wend. 301; Chapin v. Shafer, 49 N. Y. 407; Bool v. Mix, 17. Wend. 119; Stafford v. Roof, 9 Cow. 626; Goode v. Harrison, 5 Barn. & Ald. 159 ; Corpe v. Overton, 10 Bing. 252; Green v. Green, 69 N. Y. 553.) The infant avoided it as he had a right to do. The proof shows, that he had received no benefit from it except the sum of $112.69, which, on the trial, he said had been paid him .out of the business, and which he offered to restore by deducting it from his claim, and asking judgment only for the balance with interest. He, therefore, both alleged and proved a good' cause of action on contract. That there were allegations of fraudulent representations in the complaint does not of necessity fix the character of the action. Thus, it was held in Veeder v. Cooley (2 Hun, 74) that where the complaint was sufficiently sustained by the testimony, it was not enough to authorize a nonsuit if a cause of action was otherwise set forth, that it contained an allegation suited to an action ex delieto. And in Byxbie v. Wood (24 N. Y. 607), it was decided that a complaint under the Code, stating false representations of defendant by which the plaintiff was induced to pay him money, does not necessarily stamp the action as one in tort. To the same purport are other authorities. (Neftel v. Lightstone, 77 N. Y. 96; Ross v. Terry, 63 id. 614; Freer v. Denton, 61 id. 492; Graves v. Waite, 59 id. 156.) It follows, therefore, that the nonsuit was erroneous and the plaintiff’s exception thereto well founded. The judgment should be reversed; new trial granted; costs to abide the event. All concur. Judgment reversed.