John N. Benedict Co. v. McKeage

H. T. Kellogg, J.: The plaintiff and the defendant entered into a written contract whereby they agreed to trade second-hand automobiles. The plaintiff agreed to deliver to the defendant a six-passenger Stutz of the agreed value of $2,500. The defendant agreed to deliver to the plaintiff a Willys-Knight roadster and a four-cylinder Buick touring car of the agreed value of $1,800, and to pay in addition the sum of $700. The cars were delivered and the cash was paid as provided in the contract. The plaintiff found fault with the condition of the Buick car, claiming that its condition and character were not as represented. The contract contained no representations or warranties in relation to any of the cars therein described. Moreover, it expressed the following term: “ It is mutually agreed that there are no promises, verbal understandings or agreements of any kind pertaining to this order not clearly specified in it.” This stipulation precluded the plaintiff from setting up in an action upon contract oral representations or warranties collaterally entered into. (Chapin v. Dobson, 78 N. Y. 74; Eighmie, v. Taylor, 98 id. 288.) It did not preclude it from asserting in an action of deceit, brought to recover damages resulting from its entry into the contract, that it was induced to make the contract by the false oral representations of the defendant as to the condition and character of the Buick car. (Indianapolis, P. & C. R. Co. v. Tyng, 63 N. Y. 653.) Accordingly, the plaintiff brought this action of deceit. The complaint alleged that the defendant, at the time the con [163] tract was made, falsely represented that the Buick car was in good running order and mechanically in first-class condition. The evidence given by the plaintiff proved the exact opposite of these allegations. Willis D. Sweet, the agent of the plaintiff, who made the trade, testified to statements made by the defendant as follows: “ He told me the Buick was not in condition to be delivered at that time, because it was being overhauled at that time.” He also testified that the defendant made the following statement to the general manager of the plaintiff: “ He told him the Buick car was being put in first-class running order, that every part that was worn about the car was being replaced, that the car was being overhauled and would be put in first-class condition.” It is undisputed that the Buick was at the time in the process of being overhauled. All the other representations, thus testified to, related not to the condition of the car as then existing, but to the future condition of the car as promised by the defendant. Not only, therefore, did the plaintiff by its testimony disprove its own allegations, but it substituted expectations for the alleged misrepresentations and thereby destroyed its case. (Taylor v. Commercial Bank, 174 N. Y. 181.) The complaint also alleged that the defendant falsely represented that the Buick car was the latest four-cylinder Buick model. It appeared that the then latest model was manufactured in the year 1918, while the car delivered was put out in the year 1915. This constituted the only fact of misrepresentation for which the plaintiff might, if the proper proof were forthcoming, and the proper procedure were followed, have had a verdict. There are three reasons why the verdict obtained by the plaintiff' may not be supported on the theory thus advanced: First. There was no evidence that the defendant knew, had reason to know, or represented that he knew the particular year in which his Buick car was made. On the contrary, it is undisputed that the defendant stated to a representative of the plaintiff: “ Mr. Sweet, I know nothing about it. I have never seen it, only what I have been told.” The defendant was, therefore, not open to the charge that in a legal sense he deceived the plaintiff as to the age of the car. (Wakeman v. Dalley, 51 N. Y. 27; Daly v. Wise, 132 id. 306; Hadcock v. Osmer, 153 id. 604; Reno v. Bull, 226 id. 546.) Second. There was no proof that the plaintiff relied upon the representation of the defendant as to the age of the car and was induced thereby to enter into the contract. (Kountze v. Kennedy, 147 N. Y. 124.) Third. The trial judge erroneously submitted to the jury as an issue to be determined by them the question whether the defendant fraudulently misrepresented that he would place the Buick car in first164 class condition. The defendant duly excepted' to the action of the trial court in leaving to the jury “ the question of any fraud as to the representations as to the condition that the Buick car was to be in, because it was a mere promise as to a future condition, and not as to a then existing condition.” For these reasons the judgment may not be upheld. The judgment should be reversed, with costs to the appellant, and a new trial granted. All concur; Kiley, J., with a memorandum.