7 Wend. 380 | N.Y. Sup. Ct. | 1831
By the Court,
The finding of the jury disposes of the question of fraud. They have pronounced the defendant guilty of the false and fraudulent representations . alleged in the declaration, and that they were made with the fraudulent intent to deceive and injure the plaintiff. A verdict must be most clearly and manifestly against evidence to justify the court, in an action like this, in setting it aside. This is not a case of that description ; whatever may be the opinion of the court upon the strict weight of evidence, as it appears on the case, the jury, whose province it was to weigh and pass upon it, and who saw and heard the witnesses, have thought the preponderance against the defendant. I should have been inclined to a different conclusion; but the jury not only had the right, but were more competent, fairly and discreetly to decide the question than we are. Their decision cannot be disturbed. 3 J ohns. R. 180. 8 id. 369. 9 id. 36. 15 id. 493.
The only question, then, is whether the action is sustainable. It appears to me to rest upon the soundest and best established principles. Fraud or deceit, with damage, gives a
Pasley v. Freeman was the case of a false representation in-relation to the responsibility and credit of a third person, by which the plaintiff was induced to sell to him a large amount of goods. This case was expressly recognized and followed by this court in Upton v. Vail, 6 Johns. R. 181, and Barney v. Dewey, 13 id. 224. Upton v. Vail, was also a false representation of the responsibility of a third person. Kent, Ch. J. expresses his entire approbation of the reasoning and decision of the judges in Pasley v. Freeman. He considers it not a new doctrine, but merely the application of a principle of natural justice long recognized in the law, that fraud or deceit, accompanied with damage, is a good cause of action. He considers it a principle of universal law, independently of all adjudged cases, and places his opinion upon that broad foundation. Ch. J. Spencer, in Barney v. Dewey, reiterates the doctrine. See also Wise v. Wilcox, 1 Day’s Cas. in Err. 22. These cases, it is true, were representations relating to the sale of personal chattels ; but it is not perceived how the nature or description of the subject of the false representation can affect the principle. In Monell & Weller v. Colden, 13 Johns. R. 395, it was applied to representations made upon the sale of real estate. The defendant in that case owned a lot of land in the village of Newburgh, bounded on the east by high water mark on the bank of the river. The plaintiffs were in treaty for the purchase of it, and the defendant, in order to induce them to purchase and give an enhanced price, falsely represented to them, that if they became the purchasers, they would, by virtue
Can the circumstance of the false representation relating to the title of the land conveyed, instead of some collateral thing attached to it, vary the principle 1 If it does, it can only be upon the ground that the whole agreement of the parties is, in judgment of law, merged and incorporated in the deed or written contract. This is undoubtedly true, so far as the transaction rests in contract; but it has nothing to do with the false and fraudulent representations of the parties. Whatever is said or done in good faith, in a treaty for a sale and purchase, is merged in the purchase itself when consumated, and you •cannot overhaul it, whether the representations were true or false; but if they were known to he false when made, and have produced damage to the opposite party, the subsequent •consumation of the agreement cannot shield the defendant. The case of Early v. Garret & Lankester, 9 Barn. & Cresw. 928, sustains this distinction. The defendants, as assignees in bankruptcy of one Covard, sold to the plaintiff a piece of land belonging to the estate; the plaintiff before the contract was consumated, enquired of the defendants whether it was
The official character of the defendant in making the sale cannot protect him. The representations made by him had nothing to do with his official character. He then spoke as an individual, and the misrepresentation was in relation to a fact known by him, in his private capacity alone, and which had no connection with his office as commissioner of loans.
It was not necessary to prove that a suit had been commenced by the plaintiff, to recover the possession of the premises; it was proved that the judgment on which the land was sold was older than the mortgage, and that it had been regularly sold and conveyed by the sheriff. The plaintiff of course acquired no title under the mortgage. The doctrine in relation to breach of warranty does not apply to a case of fraud.
Motion for new trial denied.