Merchants' National Bank v. Taylor

THOMPSON, J. I. The defendant, by false and fraudulent representations in respect to his farm being free and clear from all incumbrances, induced the plaintifF to surrender to him about $900 worth of ‘ ‘trade paper” upon which he was liable to the plaintiff, and which was then overdue, and to take in lieu thereof his note for nine hundred dollars secured by a mortgage on the farm. Either the surrender of the “trade paper,” or the forbearance of the plaintiff by virtue of this arrangement, was a sufficient consideration, to bind the defendant by his representations, when thus acted upon by the plaintiff. Ballard v. Burton, 64 Vt. 387. The plaintiff did not rescind this contract on account of the fraud, but elected to affirm it. It thereby had two causes of action against the defendant, the one on the contract evidenced by the note, and the other in tort for the false and fraudulent representations. Both actions must proceed upon the part of the plaintiff, on the theory of an affirmance of the contract. Although differing in lorm, one would not allege what the other would deny. But while consistent, they are not identical; the one proceeds upon the theory of a tort, and the other upon contract. A party may prosecute as many remedies as he legally has, if they are consistent and concurrent, and a recovery in one does not constitute a bar to the other. Johnson v. Worden, 47 Vt. 457; Darling v. Woodward, 54 Vt. 101; Bean v. Fox, 1 Bradwell 177; Goldberg v. Dougherty, 39 N. Y. Super. Ct. 189; Bowen, Exr. v. Mandeville, 95 N. Y. 237. [578] It is urged that this action cannot be maintained by reason of the defendant’s discharge in insolvency, plaintiff having proved the note against the insolvent estate, and received a dividend thereon in the insolvency proceedings. But any legitimate proceeding to collect the note, as we have already seen, does not bar plaintiff’s right to its action for the tort. R. L., s. 1800, defines what claims may be proved against an estate in insolvency, but the cause of action in this suit is not among those which may be proved. By the provisions of R. L., s. 1856, the debtor’s certificate of discharge is only to discharge him from debts proved or provable. This cause of action was neither proved nor provable in the insolvency proceedings, and, therefore, was not discharged thereby. Johnson v. Worden, and Darling v. Woodward, supra. II. The defendant urges that in any event, the plaintifi can recover only nominal damages, but this contention cannot prevail. The plaintiff’s right of recovery stands as if there had been no insolvency proceedings. If the farm had been free from incumbrances as represented, it was of sufficient value to pay the plaintiff in full. It has received $377.88 from defendant’s assignee on the note. The court below rendered judgment for the plaintiff to recover a sum equal to the balance unpaid on the note after deducting the amount received from the assignee. Under the facts found by the court, this was the correct measure of damages. Whittier v. Collins, 15 R. I. 90; 2 Am. St. R. 879. Judgment affirmed. Start, J., being engaged in county court, did not sit.