33 N.Y.S. 1015 | N.Y. Sup. Ct. | 1895
This is an appeal from a judgment in favor of the plaintiff, entered on the verdict of the jury at circuit, and from an order denying defendant’s motion for a new trial. The action is to recover damages for deceit in the contract for the exchange of lands. The complaint alleges that one Burnham, acting for the plaintiff, entered into an agreement with the defendant under their hands and seals for the exchange of certain lands, and that the plaintiff was induced to enter into such contract and carry it out by the false representation of the defendant that the land he agreed to convey had cost him $125,000 in trade. The written agreement produced on the trial was between Burnham individually and the defendant, and was under seal.
The first question presented is whether the plaintiff can maintain this action. That he could have maintained no action on the contract is unquestionable, because, as to agreement under seals it is not permitted to show that any of the parties acted as agent for a principal not named in the’instrument. Briggs v. Partridge, 64 N. Y. 364; Schaefer v. Henkel, 75 N. Y. 378. The plaintiff concedes this proposition, but contends that the rule only applies when the action is brought directly on the sealed instrument, and that this action is not on the contract, but for fraud in inducing him to enter into the con