223 A.D. 400 | N.Y. App. Div. | 1928
The action is brought to recover for moneys had and received, plaintiff’s action being based upon an alleged fraud whereby the plaintiff was induced to part with money. The complaint alleges the usual elements of an action for fraud, except that the plaintiff does not allege and gave no evidence upon the trial that he, in fact, suffered any damages as the result of the fraud which he claims was perpetrated upon him. It is plaintiff’s contention that sometime in April, 1920, he was approached by two participants in a syndicate organized for the purpose of participating in certain stock of the United Arizona Copper Mining and Smelting Company by the name of Buckingham and Longcor, who asked the plaintiff to take over a one-fifth interest in said syndicate
The very representations upon which the plaintiff relies were those which he claims were made by Buckingham and Longcor in April, 1920, at the latter’s home in Chatham, N. J. Longcor and Buckingham deny the making of any representations. However, the jury, by their verdict, having found for the plaintiff, have resolved the question of fact as to their having been made in plaintiff’s favor. Plaintiff testified that Longcor, one of the five syndicate managers, sought to interest him in taking the Cooper interest in the syndicate and upon plaintiff’s inquiring as to what he would have to pay therefor, Longcor replied that he would be compelled to pay whatever was necessary to make Cooper whole,
Even assuming that the representations made were false, the • case is barren of any evidence showing the defendant’s responsibility therefor. The alleged representations were made prior to Cooper’s parting with his interest in the enterprise and before the defendant was shown to be a participant in any way therein. Defendant’s participation, nominal as it was, was only for a period of about two weeks, and was solely for the purpose of avoiding a merger of the Cooper interest in those of his coadventurers. There is no evidence whatever that the defendant had any knowledge that any representations had been made or that he in any manner ratified or adopted the same. Plaintiff himself, according to his own testimony, knew when he first met defendant, at the time of taking over the Cooper interest, and when he inquired and was informed that defendant was merely a conduit, that the latter had no actual interest in the transaction. The defendant never received a dollar from the transaction, and according to his testimony on his examination before trial, which was introduced in evidence by plaintiff at the trial, the payments which the defendant made in closing the transaction equaled the deposits which he had received. He received no profit whatever from the transaction, and acted merely as an agent for Longcor and Buckingham. There is no evidence in the record to support the plaintiff’s claim that at the time Buckingham and Longcor made the alleged representations to the plaintiff in New Jersey they were acting as agents for defendant. At that time defendant was unknown to the transaction and the interest was still in the name of Cooper.
It further appears that the plaintiff suffered no damage as the result of the transaction. The court erred in erroneously excluding testimony offered on the part of defendant showing that during the time when plaintiff held the interest in question he received substantial dividends therefrom and could have disposed of his interest at far more than he paid therefor. The court erroneously excluded this testimony offered by the defense, holding that the question was merely as to whether or not the agreement as alleged by plaintiff in his complaint was the agreement of the defendant. We think there was an entire failure of proof on plaintiff’s part of any damage suffered by him. To recapitulate: We think the alleged representations upon which the plaintiff relies were not shown to have been false; that no representations were shown to have
We furthermore think the court clearly erred in excluding evidence offered on the part of the defense as to the value of the plaintiff’s interest in the syndicate, and that the defendant, appellant, was entitled to present such proof. We also think the court erred in refusing to receive evidence to the effect that the defendant never authorized the alleged misrepresentations or ratified the same.
We are of the opinion that the judgment appealed from was wrong, and that the same should be reversed, with costs, and the complaint dismissed, with costs.
Dowling, P. J., Martin, O’Malley and Proskauer, JJ., concur.
Judgment reversed, with costs, and complaint dismissed, with costs.