142 P. 365 | Or. | 1914
delivered the opinion of the court.
“Mere fraud without damage gives no cause of action; the two must concur before an action will lie, and it is as necessary for a party complaining to prove the one as the other.”
This principle is not questioned. Fraud is alleged in the complaint, as is also the damage, to wit, the liability of the plaintiff on a $5,000 note, with interest,
“The amount, mode, or time of payment is not material, so as the sale was upon a sufficient consideration to sustain it. The giving of the two promissory*495 notes was a sufficient consideration; nor could the defendant defeat the right of the plaintiff to recover, by showing that the notes were still in his hands unpaid, though it may be that he might, upon a proper notice, bring the notes into court and offer to surrender them in mitigation of the damages to that extent; but we will not now affirm that even this could be done.”
The case of the Metropolitan Elevated Railway Co. v. Kneeland, 120 N. Y. 134, 140 (24 N. E. 381, 382, 17 Am. St. Rep. 619, 8 L. R. A. 253), arose in this manner. The defendants were officers and directors of the plaintiff corporation, and fraudulently caused certain obligations of the corporation which were negotiable to be issued to themselves, which they negotiated to innocent purchasers before maturity. The plaintiff brought an action based upon the theory that the defendants could be held for damages by reason of the fact that through their fraudulent acts they had caused the negotiable obligations of the plaintiff to be issued and negotiated to innocent purchasers, and thus fraudulently imposed upon the plaintiff a liability to pay the same at maturity. None of the obligations had been paid at the time of the trial. The defendants demurred to the sufficiency of the complaint for the reason that it did not appear that the plaintiff had paid any of the obligátions, and that there was no allegation of loss. The Court of Appeals, in reversing the judgment of the lower court, among other things, said:
“This is an action against the directors of a corporation for fraudulently issuing and negotiating promissory notes in its name, which, on reaching the hands of bona fide purchasers for value, became legal obligations against the company. The substantial question presented by the demurrer is whether such an action can be maintained upon an allegation of liability*496 to pay without an allegation either of payment or of actual loss. In an action for the conversion of a promissory note by wrongfully negotiating it to a bona fide holder for value, the maker need neither allege nor prove that he has paid it, but it is sufficient if he avers that he is legally liable to pay it: Decker v. Mathews, 12 N. Y. 313. The gravamen of such an action, as was held in the case cited, is the wrongful act of the defendant in causing a note without value, except to a bona fide holder, to become valuable by the sale thereof to such a purchaser as could enforce it against the plaintiff. It was also held in that case that a cause of action accrued to the maker as soon as he became liable upon the note through the transfer thereof, and that neither the right of action nor the measure of damages depended upon the fact of payment. This case was relied upon by the court when it rendered judgment in Farnham v. Benedict, 107 N. Y. 159, [13 N. E. 784], where the defendant, being in possession, without title, of certain town bonds that had been fraudulently issued through his procurement, and which were void in fact,1 although apparently valid, sold them to bona fide purchasers, and thus rendered them valid and binding upon the town, so that it was compelled to pay them. It was held that he was liable to the town for the amount of the bonds, and Judge Rapallo, in speaking for the court, said that immediately on the negotiation of the bonds a cause of action accrued in favor of the town, either in the nature of an action of trover for the face of the bonds, or as for money had and received, for the money realized by him on the sale, according to the rule laid down in Comstock v. Hier, 73 N. Y. 269 [29 Am. Rep. 142]. In Thayer v. Manley, 73 N. Y. 305, the defendant, by means of false and fraudulent representations, induced the plaintiff to execute and deliver to him three negotiable promissory notes, but before any of them became due the plaintiff demanded them from the defendant, who refused to deliver them. ’He still held the notes at the time of the trial, but one of them had become due after the com*497 mencement of the action. It was held that, as the defendant had it in his power, when the suit was commenced, to dispose of the notes to a bona fide holder, in whose hands they would have heen valid, and as the plaintiff was then entitled to recover the actual damage which might accrue to him, this right was not impaired by the subsequent maturity of one of the notes before a transfer; that, as the judgment and a satisfaction thereof would transfer title to the notes to defendant, plaintiff was entitled to recover the full value; but that to avoid circuity of action a provision should be incorporated in the judgment giving to defendant the right to cancel and return the notes as a satisfaction of the damages. It was also held that the measure of damages in such an action is the face of the note and interest, unless it should appear that it was of less value by reason of payment of the same, insolvency of the maker or some other lawful defense”—citing Betz v. Daily, 3 N. Y. St. Rep. 309, and Town of Ontario v. Hill, 33 Hun, 250.
In Stearns v. Kennedy, 94 Minn. 439, 443 (103 N. W. 212, 213), the action was brought for damages sustained by the plaintiff as the result of fraud practiced upon him in the sale of land which he purchased upon contract. The major part of the purchase price remained unpaid at the time of the action as well as at the time of the trial. The defendant contended that the plaintiff could not maintain an action for damages until he had made all the payments stipulated by the contract. The Supreme Court of Minnesota, in denying this contention, said:
“The payment of the balance of the purchase price of the land was not a condition precedent to the plaintiff’s right to maintain an action for damages for the alleged fraud. It is true, as the defendant suggests, that the plaintiff may never pay the balance of the purchase price, and the defendant may be compelled to take back the land; but this contingency does not*498 affect the plaintiff’s .cause of action, which became complete when the contract was made, $1,400 on the purchase price paid, and the fraud discovered: Applebee v. Rumery, 28 Ill. 280; Weaver v. Shriver, 79 Md. 530 (30 Atl. 189). Again, the plaintiff, by his contract, covenanted to pay the balance of the purchase price of the land, and all of it which became due before the commencement of the action was paid, and there is no suggestion in the pleadings or the evidence that he is not solvent; hence equitably, as well as legally, he has a right to prosecute this action.”
See, also, Davison v. Farr, 18 Misc. Rep. 124 (41 N. Y. Supp. 170-172); Nashville Lbr. Co. v. Fourth National Bank, 94 Tenn. 374 (29 S. W. 368, 45 Am. St. Rep. 727, 27 L. R. A. 519, note); Decker v. Mathews, 12 N. Y. 313; Oliver v. North. Pac. Transp. Co., 3 Or. 84, 87; 8 Am. & Eng. Cyc. Law (2 ed.), 647. It was error to sustain the demurrer to the complaint.
The judgment of the lower court is reversed and the cause remanded for such further proceedings as may be deemed proper, not inconsistent with this opinion. Ebversed and Eemanded.