Hardin, P. J. Upon an inspection of the evidence, it is seen that the same is sufficient to sustain the verdict. The evidence sustains the allegations of fraud. We may not, therefore, interfere with the verdict as being against the weight of evidence. Upon the facts found by the verdict, a cause of action is made out against the defendant. Brackett v. Griswold, 112 N. Y. 454, 20 N. E. Rep. 376. 2.
In the course of the charge delivered by the learned trial judge to the jury, he said: “If you say that the plaintiff is entitled to recover in this case, the rule would be the actual loss which he has sustained by reason of this 258 false and fraudulent representation; and, gentlemen, that would'be the difference between the contract price of these hops at which they were sold, and were to have been taken, and the price which they were actually worth at the time they ought to have been delivered.” At another point in tliecharge the court observed: “If the plaintiff is entitled to recover in this action, he is entitled, within the rules of law of this state, to recover the actual damage which he has sustained, and the rule is not very much different or very widely different in actions sounding in tort under the facts in this case than upon a breach of contract, or if the action had been brought for a breach of contract in an action at law merely.” The defendant’s counsel took a general exception “to that part of the charge in which the court states the ruleof damages in this case;” and accompanying the exception was a request “to say to the jury that the plaintiff must show affirmatively that Elkins was solvent and responsible.” In response to that request, the court declined to charge the proposition.
We think there was no error in declining to yield to the request. The presumption was that Elkins was “solvent and responsible,” and, so far as the evidence bears upon that question, it indicates that he was solvent and responsible. 3.
The defendant’s counsel asked the court “to charge directly that a verdict or judgment for the defendant in this case would not be a bar to an action by the plaintiff against Knox for a breach of contract to buy the hops upon his own account.” In response to that request, the court observed: “I decline to charge that.
I think the rule is, having selected this remedy, and the method of enforcing it, that it is a selection which he must standby, and I decline to charge the proposition.” If the court had simply declined to yield to the request, we might say that the request was not upon a material issue in the case; but we must consider the further language used by the court, to-wit: “The rule is, having selected this'remedy, and the method of enforcing it, that it is a selection which he must stand by, and I decline to chargethe proposition.” We think this is not a case where the doctrine of election applies.
The plaintiff charges the defendant in his"complaint, and in the evidence produced, with having committed a fraud, and that he fraudulently represented that he was the agent for Elkins. It might well be that there was no fraud, and the jury might have been properly instructed that, if they found there was no fraud, there could not be a recovery against the defendant in the form of action adopted here.
We fail to see, however, that such failure would have prevented the plaintiff from recovering against the defendant upon the theory that he himself had become the purchaser of the hops, and was liable as upon the contract made by the plaintiff. It is a familiar principle that-when a party assumes to act as agentfor another, and induces a contract upon that assumption, and it turns out that there was no authority in fact to act for the supposed or alleged principal, the agent himself is liable upon the contract.
We think it does not require the same evidence to support an action for alleging the defendant is liable upon the contract made as it does to support an action alleging that he fraudulently represented that he was authorized as agent for a party to act. As was said in Bowen v. Mand&oille, 95 2T.
IT. 241: “In the one case the recovery is based upon the express liability assumed by the party in his contract, and in the other upon the liability incurred for a violation of the duty of honesty and fair dealing which the law enjoins upon one in his dealings with another.” We think, for the error pointed out, that there must be a new trial. Judgment and order reversed, and a new trial ordered, with costs to abide the event.
Loading…