91 N.Y.S. 917 | N.Y. App. Div. | 1905
The plaintiff in this action is a widow, fifty-eight years of age and a person who appears to have been singularly innocent and confiding in reference to her business affairs. It appears that she had some kind of a claim against the Arizona Copper Company, and early in the spring of 1901 she left her home near Boston and came to New York to make inquiry about this claim, aggregating something like $4,000. She went to the office of the Arizona Copper Company, and was told that her claim was not against that company, but the party whom she found in the office told her that he could direct her to the proper person, a Mr. Simmons, in the same building. This Mr. Simmons introduced her to the defendant as a . gentleman and a lawyer to prosecute her claim against the copper company, and it is alleged that.Mr. Simmons was the secretary of such company. After some negotiation the copper company agreed “ to give the plaintiff $1,000 in settlement of her claim, and this . amount, less $250 retained by the defendant as counsel fee, was subsequently paid over to the plaintiff. Before she left the city, however,, the defendant called upon her to bid her good by, and as an incident to that visit, lie-sold the plaintiff ten shares of stock in the Colonial Exploitation and Trading Company of New York, taking $700 in cash and her promise to pay $300 more at a subsequent time, telling her a very ingenious story of Iris good fortune in being able to secure this stock for her, and promising a dividend of $10 per share in the following January. This certificate of stock was subsequently, delivered to the plaintiff, and although there are allegations of fraud in connection with this transaction, the learned court withdrew this from the consideration of the jury, and no question is raised upon this appeal, the transaction having no other purpose, as evidence, than to show the course of dealing.
Soon after the above transaction, which occurred on the 27th day of April, 1901, the defendant went to South America ostensibly on business for the exploitation company, ánd he took occasion while absent, under date of Port of Spain, Trinidad, B. W. I., May 15, 1901, to write a letter to the plaintiff telling her of his trip, his hopes, the prospects of the business, etc., .closing with, “ Please take good care of yourself and try to avoid being worried by anyone.”
“ Parker House, Boston, July 27, 1901.
“ Received this day -from Jennie Bingham Forty-five hundred dollars for. seventy-five shares of the capital stock of the American 1 Coke & Gas Co. of the par value of $1Q0 each. Certificate to be delivered one week from date. :
“ PAUL SHELDON.”
The plaintiff testifies that she never received the certificate of stock for this seventy-five shares, of .stock, and the defendant con
The record contains much further correspondence between the parties, in which it appears that the plaintiff insisted at all times that she was relying upon his integrity and judgment in these matters, and the defendant as plainly indicates that he understands that he is acting as her adviser, the transactions including correspondence over claims pending in Chicago against a railroad company and other matters, but although the defendant has returned the $2,500, with the $500 bonus, the plaintiff is still out about $4,000 on the transaction) for which she has a judgment, which the defendant is seeking to have overturned in this court mainly upon the ground that he was simply a borrower of the $4,500, and that this contract debt cannot be recovered in an action for fraud. This would undoubtedly be the case if it was clearly established that the transaction was merely a contract debt, free from fraud, but we are clearly of opinion that the transactions thus briefly set forth were such as to call upon the defendant to clearly establish that his dealings with the plaintiff were free from the taint of fraud. He offered no evidence in his own behalf, relying upon what he conceived to be the law of the case, and the jury having found in favor of the plaintiff, upon the undisputed facts, only questions of law are presented upon this appeal.
Upon this appeal it appears to be the contention of the defendant that when he was paid for his services in the settlement of the Arizona Copper Company deal he ceased to be the attorney of the plaintiff, and that his subsequent dealings with her were upon the basis of individual transactions of a business character. But this payment for services wás made about the nineteenth of April, and the defendant, in going up to take leave of his client, interested her in a stock purchase, and the relations which began in his employment as attorney were continued through this entire series of transactions, the defendant referring to the plaintiff as his client on the eighteenth day of June, and the entire correspondence being based upon an assumed confidential understanding between the parties; and the defendant, being the one possessed of special information
As all of the defendant’s exceptions are based upon the theory that he had a right to deal with the plaintiff upon a basis of equality^ and as the facts and ■ circumstances disclosed by the "evidence and undisputed show that he occupied a fiduciary relation toward the plaintiff, it does no't seem necessary tó review his various points.. It
• The judgment and order appealed from should be affirmed, with costs.
Hirsohberg, P. J., Bartlett, Jenks and Hooker, JJ., concurred. Judgment and order affirmed, with costs.
