Foley v. Western N. Y. & P. R.

Titus, C. J. It appears that at one time the plaintiff was in the employ of the defendant, and that for some reason he was discharged; that he again sought employment under the name of Frank McGuire, and was engaged in the capacity of a brakeman on a freight train. After he had worked 36 days, it became known to the defendant that he was in fact the Frank Foley whom it had previously discharged from its employ, and he was thereupon immediately discharged, apparently for the same reason as for his first discharge. The defendant refused to pay him for his services while employed as Frank McGuire. He performed his duties under his last employment satisfactorily to the defendant, being prompt and efficient in his work. Ho complaint is made against him, or reason given for his discharge, except the fact that' he was once in the employ of the railroad and discharged from its service. Ho claim is made by the defendant for damages against him while in its employ, either as Frank Foley or Frank McGuire, but it seeks to be relieved from the payment of his wages on the ground that he falsely represented himself to be Frank McGuire, and fraudulently induced the defendant to enter into a contract with him, when, if. his identity had been known, he would not have been employed. Ho claim is made that the defendant suffered any damage by reason of the false representations, but, having been imposed upon by him, it claims not to be liable to pay for the services performed. I think that the judgment of the municipal court must be affirmed. It is a well-settled principle of law that, where no damage has been suffered by reason of fraud, [827] no action will lie, and the law does not take cognizance of a fraud which is not actionable. 2 Pars. Cont. (5th Ed.) 771; Morgan v. Bliss, 2 Mass. 112. The defendant has had the services of the plaintiff and has suffered no damages. Goncededly his services were valuable and worth what he claims them to be. After he has finished his work—after the contract is completed—it is difficult to see how the defendant can escape liability. The plaintiff was employed for no definite period. He could have left the employment of the defendant without notice. He could have been discharged by it at pleasure. And when either party elects to terminate a contract for labor, indefinite as to the time, it becomes a completed contract. McLees v. Hall, 10 Wend. 426. And after a contract has been fully executed it cannot be repudiated by the party who has reaped the benefit of it. Emmet v. Reed, 8 N. Y. 312. Suppose the plaintiff had made an arrangement to work one month, and at the expiration of that time can it be said that the defendant could refuse to pay his wages on the ground that he had fraudulently withheld his name, when it had suffered no damage? And as this contract was indefinite in character, and becomes an executed contract whenever either party elects, then the rule is applicable the same as if it were fixed and definite. It is elementary that fraud vitiates all contracts, but this is only in case the party knowing of the fraud desires to avoid the contract. He may rescind the contract and recover the price paid, or he may affirm the contract and sue for damages. Camp v. Pulver, 5 Barb. 91. But, unless the contract is an illegal one, for an unlawful purpose, it may still be performed, and the parties made liable under it. If they wish to avoid it, they must elect and take steps to that end; but when it has become an executed contract, and the party alleging the fraud has reaped all the benefits from it, he cannot then say to the other party that it is fraudulent, and excuse himself from performing on his part; and so the fraud, to be actionable, must have resulted in a direct and positive injury to the party. Taylor v. Scoville, 54 Barb. 34. It is not claimed in this case that the defendant was damaged or injured in any way by the fraudulent conduct of the plaintiff, and no damages have resulted from it, and hence the fraud becomes immaterial. Taylor v. Scoville, ¿Hun, 301. I think, therefore, the judgment of the municipal court should be affirmed, with costs. Hatch, J., concurs.