115 N.Y.S. 999 | N.Y. App. Div. | 1909
Lead Opinion
The judgment should be affirmed, with costs.
The action was brought to set aside a contract and deed of real property, or, in the alternative, to reform said contract and deed so as to limit the building upon the land to dwelling houses, and to procure' the issue of temporary and permanent orders restraining the building of other than dwelling houses upon the property sold. It is not contended that the plaintiff under the evidence in the case was entitled to any reformation of the contract or deed. The attention of both parties was called to the question before the contract and deed were prepared as to what use the defendant Gillig was to make of the property, hi either party asked to have any restrictive clause inserted in the papers. They knew there was no such clause therein when the papers were executed. They did not intend there should be. The referee did not' find that the plaintiff was entitled to a reformation of the contract or deed. The only relief the plaintiff was entitled to, if any, was that which the referee awarded, setting aside the contract and deed as having been procured by fraud practiced upon the plaintiff by the defendant Gillig, and the only fraud found by the referee was that the defendant Gillig represented to the plaintiff that he imtended to use the property for dwelling houses and for no other purpose, when, as a matter of fact, he had all the time a preconceived intent to construct an automobile garage thereon. It was further found that the state
The contractors were joined as parties defendant with Gillig, and a temporary injunction was secured restraining the continuance of the work on the garage. ■ Ho further work has been done thereon.
The building of a garage on the property would be a great damage to plaintiff’s other property adjoining that sold. The property was in one of the best resident localities in the city of Buffalo, and the referee very properly found that the false representation was designed to and did deceive the plaintiff and induce her to make the contract and deed, and that she was injured thereby. The only question really involved in this appeal is one of law as to whether the representation was one upon which fraud could be predicated, that he intended to use the property to build dwelling houses on
Respondent’s counsel cites another line of cases, however, apparently holding a contrary doctrine.
These cases are sought to be distinguished by opposing counsel upon one ground and another. We do not desire to enter upon any analysis of these cases. Our judgment is that the law in this State is that fraud cannot be founded solely upon a promise not performed, even if the promisor never intended to fulfill the same. (See Kley v. Healy, 127 N. Y. 561.)
The question here is slightly different, however. This statement was in no sense a promise. It was a statement of a present existing intent, and we see no reason why it was not as much an existing fact as any other fact that could be made the basis of a charge of fraud.
The purpose of the statement was to deceive and defraud, and it accomplished such purpose. There is no decision in this State bearing upon this precise point, but it is reasonable to hold the defendant liable for this fraud; the result in this case is in accord with justice, and we think the judgment should be affirmed.
All concurred, except McLennan, P. J., and Robson, J.,. who dissented, in an opinion by McLennan, P. J.
Dissenting Opinion
The material findings of fact are supported by evidence and áre, in substance, that in May, 1908, the defendant entered into negotiations with plaintiff’s agents looking to the purchase of some real property situate in a residential portion of the city of Buffalo, in which locality were other lands owned by the plaintiff; that the purchase price was agreed upon and during the negotiations the defendant was asked for what purpose he desired to use the land which he was seeking to purchase, and in reply he stated, in substance, that he intended to use the property only for the “ purpose of building residences thereon ; ” and that statement or declaration was communicated to the plaintiff; that said statement of intention so made by the defendant was false and fraudulent and made with intent to deceive the plaintiff; that she, however, believed and relied upon the same and entered into a written contract with the defendant for the sale of the premises to him, the plaintiff agreeing, on or before May 28, 1908, to furnish to the defendant a “ full tax and title search * * * showing a good and marketable title and showing the premises free and clear of all liens and incumbrances,” except a certain mortgage, from the lien of which she agreed these premises would be released at the date of /the consummation of this transaction. The defendant agreed to pay $100 down, which he did, and the balance, $5,425, on the 8th day of June, 1908, at'wliich time it was agreed a warranty deed of the premises should be delivered to him by the plaintiff. Such contract contained no restrictive clause or covenant. Thereafter and on June'2, 1908, the plaintiff, through her agents, duly delivered to the defendant a search of the premises showing a marketable title and delivered to him a. warranty deed of the same, which he accepted and paid the balance of the purchase price, viz., $5,425.- Such deed contained no restrictive clause or covenant and did not in any manner refer to the oral ■statement alleged to have been made by the defendant in respect to the purpose for which he intended to use the property.
The court finds that during all the time the negotiations were pending the defendant intended, in case he purchased the property, to erect a garage thereon, and immediately upon getting the deed he commenced its erection, and the court also finds in this case that if such garage is erected, it will seriously damage other property in the
The decision in the case of Wilson v. Deen (74 N. Y. 531) is decisive of the question here involved and is adverse to respondent’s contention, and, so far as I can discover, the authority of that case, or the correctness of the rule there enunciated, has never been questioned by any court in this State. In that case the defendant executed to the plaintiff a lease of a dwelling house in the city of Hew York, with the furniture therein. During the negotiations prior to the execution of the lease and again at the time the lease was executed, the defendant agreed by parol to supply certain furniture and. to have the house completely furnished by the.begmning of the term. The lease contained no such covenant and this was known by the lessee when the lease was signed, at which time the defendant again promised to complete the furniture. The lessee stated that she was willing to rely upon the faith of the defendant’s promise. The defendant did not fulfill her promise and the lessee refused to accept the premises and brought the action to cancel the lease. The Court of Appeals held that the action could not be maintained. Judge Eapallo, writing for the court (at p. 535), said : “ Where there is no fraud or mistake in the preparation of the instrument, and it appears that the party knew its effect and purport, there is no ground for the reform of the contract, and a cotemporaneous promise on the faith of which he signed, cannot be given in evidence to control it. * * * The current of our authorities sustains the proposition that, both at law and in equity, one who sets his hand and seal to a written instrument, knowing its contents,
I have quoted thus at length from the opinion of Judge Rapallo because, as it seems to me, his language exactly covers every phase of the proposition now under discussion. It would be difficult to find
We conclude also that this action cannot be maintained because the alleged false representation related not to an existing fact or past fact, but to an intention or promise on the part of the defendant to do something in the future. (Lawson Cont. [1st ed.] § 234; Gray v. Palmer, 2 Robt. 500.) In that case the court said: “ To be actionable, the representation must be of some fact alleged to exist at the time and made for the purpose of inducement. * * * Even if he. intended, at the time it was made, to repudiate, his promise was not of such a character as to make him responsible in this action. The other representations are .of the same description. They are all promises for future conduct and not representations of existing facts.” (See, also, Gallager v. Brunel, 6 Cow. 346.) Cases to the same effect, decided by courts of other States, might also be cited. No case has been called to our attention, decided by any court in this State, in which it is held that a deed of real property may be canceled upon proof that the grantee prior, to the execution and'delivery of such deed made false representations as to his intentions respecting the use to which he would devote the property conveyed. We, however, desire to place our dissent upon the square proposition that the plaintiff may not have read.into the contract or deed the alleged oral agreement of the defendant and thus vary, and practically nullify, the contract and deed signed by the respective parties, or make such oral agreement the basis for their cancellation.
Cá,n it be possible that a- warranty deed, executed to a grantee under all the formalities prescribed by the statute and with full knowledge of its contents by a grantor, may be canceled upon proof that such grantee, by an oral agreement made prior to the execution and delivery of such deed, agreed to use the property thus conveyed
It follows that the judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.
Robson, J., concurred.
Judgment affirmed, with costs.