Benton v. Pratt

2 Wend. 385 | N.Y. Sup. Ct. | 1829

By the Court, Sutherland, J.

If the allegations in either of the counts in the declaration are true, the plaintiff has clearly sustained an essential injury from the act of the defendants, which he alleges was done fraudulently and with the intent to injure him; and, upon principle, the law ought to afford him redress. The doctrines maintained by the judge in Parley v. Freeman, (3 T. R. 51,) appear to me abundantly to sustain this action. That, it will be recollected, was the case of a false affirmation made by the defendant, in relation to the credit and responsibility of one Falch, whereby the plaintiff was induced to sell to him, on credit, a large amount of goods, wares and merchandise. „ Mr. Justice Buller says that fraud without damage, or damage without fraud, gives no cause of action; but where these two concur, an action lies. (3 Bulstr. 95.) It was admitted that no action could be supported for telling a bare, naked lie ; that is, saying a thing which is false, without any intention to injure, cheat or deceive another person; and it was said that though every deceit comprehends a lie, yet it is more than a lie on account of the view with which it is practised, and the injury which it is calculated to occasion and does occasion to another person; and Mr. Justice Buller concludes by saying, that if a man will wickedly assert that which he knows to be false, and thereby draws his neighbor into a heavy loss, the law should compel him to pay for it.

Mr. Justice Ashurst says, in order to make a lie actionable, it must be accompanied by the circumstances averred in this case, namely, that the defendant, intending to deceive and defraud, made the false affirmation, in consequence of which the injury accrued to the plaintiff. Any lie, accompanied with those circumstances, he held to be the subject of an action, but not a false assertion, made at random, without any intention to hurt any body, the quo anima constituting the gist of the action. Lord Kenyon expressed his unqualified approbation of the principles advanced and maintained by his brethren.

In Gallager and Mason v. Brunel, (6 Cowen, 346,) all the cases applicable to this subject are considered, and the principles established in Parley v. Freeman are fully recognized. The action in that case was held not to lie, because the false representation which was alleged to have been made did not amount‘ an assertion of a fact or facts as existing at the time. The declaration alleged that the defendant, intending to injure and defraud the plaintiffs, and to induce them to sell certain goods to C. & H., falsely represented that he was willing to endorse the note of C, & H. It was held that the gravamen of this case was nothing more than that the defendant encouraged the plaintiffs to sell their goods to C. & H., and, as surety, promised to endorse their notes ; and that the intention of the defendant not to fulfil his engagement was not among the fraudulent acts which will render a party liable to an action; that it was an attempt to make him responsible as for a tort, upon a promise which was void by the statute of frauds. In the case at bar there are no such difficulties ; there is the assertion, on the part of the defendant, of an unqualified falsehood, with a fraudulent intent as to a present or existing fact, and a direct, positive and material injury'resulting therefrom to the plaintiff. This is sufficient to sustain the action. There is no mis-joinder of counts ; the first count contains a great deal of surplusage, and is very inartificially constructed; but it is clearly in tort, not on contract. The motion in arrest must be denied.

There is no ground for interfering in this case with the verdict. The charge of the judge is not given, nor is it complained of. It must therefore be presumed to have been correct throughout. Nor does it appear upon what principle the damages were computed.

It is not material whether the contract of the plaintiff with Seagraves and Wilson was binding upon them or not; the evidence established beyond all question that they would have fulfilled it but for the false and fraudulent representations of the defendants.

■ As to the fact of the defendants having made the false representations alleged in the declaration, it was for the jury to determine upon the evidence given. We must intend that they were properly instructed upon that point by the court; and I think the verdict is fully warranted.

Motion in arrest and for new trial denied.