Ives v. Carter

Hinman, J. The first question in this case arises on the motion in arrest, for the insufficiency of the declaration. The [403] declaration is claimed to be defective, because it appears from it, that the fraud, or deceit, was in part effected by means of a promise made by the defendant, at the time of the sale, that if the plaintiff would purchase the property at the sum of fifteen hundred dollars, and it should not turn out as he represented, he would make all right. The claim is, that the action should have been upon this promise, and not for the fraud in the sale. The objection is not that the plaintiff was not defrauded, but that, inasmuch as there was connected with the fraud a false and deceitful promise, therefore, the plaintiff must resort to the promise for his remedy. We know of no principle that requires us to sanction this claim. In a case thus situated, it appears to us, that the party may have his election to sue either upon the contract, or for the fraud; and in either case, so long as it appears that the party is entitled to the remedy he has selected, it can be no objection to the declaration, because it appears from it, that he was also entitled to another remedy. It is further claimed that there is no sufficient allegation of loss or damage, to justify a recovery. The declaration alleges, that the defendant was the owner of one fourth part of certain partnership property, and a member of the co-partnership; that the copartnership was hopelessly insolvent, having lost its entire capital, and being also indebted to the amount of eighteen thousand dollars, all which was well known to the defendant; and, in order to induce the plaintiff to purchase of him his interest in said copartnership, and property, he represented its affairs to be prosperous, that it had cleared over its expenses not less than $5000; that one Neil wanted to buy his interest, and had offered him $1500 for it, and stood ready at any time to take it off the plaintiff’s hands, if he purchased it;—that he would make all right, if the plaintiff purchased it and it did not turn out as represented. It further appears from the declaration that, relying on these representations, the plaintiff did purchase, and pay $1500 for the defendant’s interest in this copart [404] nership, and its property, by reason whereof he was injured &c. General damages, which are such as the law presumes from the wrong complained of, need not be specially pleaded, because the law presumes them ; and presumptions of law need not be pleaded. Steph. on PL, 354. It is alleged that the copartnership was hopelessly insolvent, having lost its entire capital, and was also indebted to the amount of eighteen thousand dollars; as property, therefore, it was worthless, and the plaintiff has, of course, lost his $1500 which he paid for it. To this extent it seems to be clear that the declaration shows an injury; and as this is more in amount than the verdict gives him, we need not consider whether he could, under the declaration, recover for the liabilities he was afterward induced to incur on account of the debts of the partnership. We think the motion in arrest cannot prevail. There is also a motion for a new trial, on the ground of error in the charge to the jury. The defendant requested the court to charge the jury, that if the contract was as claimed by the plaintiff, it was a conditional contract as to the price and value of the property, by the terms of which the plaintiff had protected himself from loss, irrespective of any fraud, and, therefore, he could not recover in this action. This has reference to the proof that went in support of that part of the declaration, in which it is alleged that, at the time of the defendant’s making the representations which were claimed to be false and fraudulent, he also stated that, if the plaintiff would purchase his interest in the copartnership, and the property belonging thereto, and it should not turn out as he represented, he would make all right. In substance, therefore, it is the same question which is made in another form, under the motion in arrest, and has been answered in what has been said as to the sufficiency of the declaration. The claim is founded upon the idea that there can be no actionable fraud, as to the quality, or value of property sold, [405] where there is a binding contract, which is sufficient to protect the purchaser against such fraud. As no authority is cited in support of the proposition, and it does not appear to us to be founded in, or supported by, any sound reason, we cannot sanction it. Where fraud has operated to the injury of a party, it does not seem to be a good answer to an action for it, for the defendant to say, that, as he promised to make good any injury resulting from it, therefore he ought not to be sued for it, in the action usually brought for such an injury. In Wallace v. Jarman, 2 Stark., 163, 3 E. C. L., 295. Lord Ellenborough held that the purchaser of a warranted but worthless watch, might maintain an action for the deceit, although there was a stipulation that, if he disliked it, he might exchange it for one of equal value; and there are many cases where a party may sue for fraud, or on a contract. The court refused to charge the jury, that all the representations set forth in the declaration, except that in respect to the amount which the company had cleared, were not such as would sustain an action. This is complained of. But we think the representation, as to what Neil had offered, and stood ready to give, and take the property off the plaintiff’s hands, if he purchased, was directly calculated to affect the value of the property; Risney v. Selby, Salk., 211. Benton v. Pratt, 2 Wend., 385. And if any one of the other representations is sufficient to support an action, the claim is obviously unfounded. The court charged the jury that, in estimating the damages, they might take into consideration the plaintiff’s expenses in prosecuting the suit. It is apparent that the rule adopted in Linsley v. Bushnell, 15 Conn. R., 225, sustains this part of the charge; and certainly there is no class of cases to which it can more appropriately be applied, than to cases of actual fraud, by means of false representations in respect to the quality of property sold. Upon the whole, [406] therefore, we advise that the motion in arrest be overruled, and that a new trial be denied. In this opinion, the other Judges, Stores & Ellsworth, concurred. New trial not-to be granted.