149 N.Y. 346 | NY | 1896
Lead Opinion
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *349 The finding of fact by the trial court with respect to the representations made by the defendant to the plaintiff, in order to procure from her the instruments in settlement of their differences, which are the subject of this action, is in the alternative, viz.: that the defendant was interested, or was about to become interested, as a co-partner in the firm of Higgins Co. The allegation of the complaint was that the defendant represented to the plaintiff that he was interested as a co-partner in the firm of Higgins Co. The finding of fact is, therefore, not as the fact was alleged in the complaint to be. It may be read, either that the defendant made representations to the plaintiff in the alternative form set forth in the finding; or that the defendant represented the one or the other fact with respect to the firm of Higgins Co. The argument of the appellant is that the finding is not in the alternative; but that it states a representation by *351 the defendant in the alternative; that is to say, that he was interested, or was about to become interested, as a co-partner with Higgins Co.
It appears that after the judgment, which the plaintiff had recovered against the defendant, had been opened and when leave was given to the defendant to answer the complaint in the action, the plaintiff and defendant got together and agreed between themselves to settle their difference and with that purpose in their minds, they went to the office of the plaintiff's lawyer to have the matter put into legal shape. According to the plaintiff's own testimony, the representations which the defendant had made to her, to bring about the settlement, were to the effect, either that he was going to have an interest in the firm of Higgins Co., or that he was about becoming interested in the firm; and in no instance does she testify that the defendant represented, as she has alleged in the complaint, that he was interested as a co-partner in the firm. It is clear that she failed to sustain the allegations of her complaint by her own evidence concerning the statement or representation made to her by the defendant, and upon which she says she had agreed to settle, and it is with respect to what he said to her and upon which her mind acted in coming to an agreement to settle, that the court is concerned. Looking at the finding in its alternative phase, that the defendant represented that he was about to become interested as a co-partner of Higgins Co., the finding would not warrant the judgment below. It was admitted, and so testified by the defendant, that he was not interested in the firm of Higgins Co., at any time; but he did not testify that he had not expected to be a partner in the firm and there was no evidence in the case that it was not true that he was about to become interested as a co-partner with Higgins Co. The burden was upon the plaintiff to show that such a representation, if made, was false and that it was deceitfully and fraudulently made and this she failed to do. It is a familiar rule, where representations consist in mere expressions of hope, expectations *352 and the like, that the party to whom they are made is not legally justified in relying upon them and assuming them to be true. The representation of what one expects, or hopes, as about to take place, in order to induce action on the part of the person to whom made, may be honest, or may be fraudulent. If the former, then no action will lie upon the ground of fraud, if the expectation is not realized. If the representation is made fraudulently and with the intention to deceive, then the evidence must exhibit it in that character. For the presumption will be, in the absence of such evidence, that the person making the representation did so honestly, however extravagant in his hopes. What has been said upon this phase of the appeal is in accord with the reasoning, in part, employed by the learned General Term below. We might, in affirming the determination of that court, rest upon its opinion, were it not that there is another ground upon which the judgment should have been reversed and which obviates the difficulty of a point taken by the appellant that this question was not sufficiently raised by a proper exception to the finding of fact as to the misrepresentations. It is insisted that the exception was too general to be availed of by the appellant at the General Term. If the argument is sound, (and I doubt it), it is not necessary to pass upon the question, or that the case should rest there.
I think that the judgment recovered by the plaintiff in the trial court was properly reversed by the General Term, for the reason that the plaintiff has not offered to restore the defendant to the position which he occupied, at the time when the agreement for settlement was made between them, and the court in its decree has not provided for such restoration as a condition of awarding the relief demanded. The conclusions of law, reached by the trial court and upon which the judgment was ordered, were that the satisfaction of the judgment should be vacated and that the plaintiff was entitled to collect her judgment by execution. Exceptions were taken to these conclusions and enable us to consider their correctness. A court of equity shapes its *353
remedy so as to meet the demands of justice and, as said by Mr. Pomeroy, in his work on Equity Jurisprudence, (§ 910) "the fundamental theory upon which equity acts is that of restoration — of restoring the defrauded party primarily, and the fraudulent party as a necessary incident, to the positions which they occupied before the fraud was committed. Assuming that the transaction ought not to have taken place, the court proceeds as though it had not taken place, and returns the parties to that situation." In Graham v. Meyer (
The making of the representations sworn to by the plaintiff was denied by the defendant, as was also any promise to pay the judgment. And it is to be observed that the agreement contained no such promise. Though the court credited the plaintiff's evidence and set aside the instruments she had executed, it should have restored both parties to the situation in which they were then the agreement of settlement was made. However unwilling the trial court to believe the defendant's evidence, a just application of equitable principles in such cases required that the decree should confine the remedy to the cancellation of the instruments of release and of satisfaction of judgment and that it should return both parties to the situation in which they were previously to their making. This equitable rule is not only generally an essentially just one; but in this case it is especially so. The judgment now adjudged to be collectible of the defendant was obtained under circumstances well calculated to excite a reasonable suspicion of its correctness; entered as it was some ten years after the alleged service of the summons.
When this case was in this court before, upon appeal from a dismissal of the complaint at the Circuit upon the plaintiff's opening, (
For the reasons stated, I think the order appealed from should be affirmed and that judgment absolute should be rendered against the appellant, upon her stipulation.
Dissenting Opinion
The General Term having reversed the judgment in favor of the plaintiff, and granted a new trial, she is now before this court, by her appeal, contending that the decision is wrong in point of law. The grounds upon which the reversal proceeded have been made very plain by the opinion of the learned judge, which appears in the record. They are either that the judgment was not warranted by the facts found, or that the facts found were not warranted by the pleadings and proofs. No other ground has been suggested by the learned court below for disturbing the judgment. We have not been able to concur in the reasons of the court below for the judgment of reversal, but a new ground, not noticed by the court below, has been suggested upon which the reversal can be sustained. The plaintiff, in order to present her case to this court, was obliged to stipulate that in case it should appear that her appeal was not well taken, judgment final and absolute shall be rendered against *356 her. If we are to look through the record, under such circumstances, to find reasons for sustaining a judgment which, concededly, was put by the court below upon erroneous grounds, we ought, at least, to be reasonably sure that the new point is a good one. We ought not to defeat the plaintiff's cause of action, upon which she has twice recovered judgment, upon a ground never suggested before, unless that ground seems to be supported by reason and law.
In order to properly appreciate the real value and importance of the point upon which it is now proposed to sustain the order of reversal, we must get a clear idea of the nature of this action and the issues which were before the Special Term for trial, upon which the plaintiff was successful. The cause of action stated in the complaint is very clear and simple. It was a bill in equity to cancel and remove from the record a satisfaction of a judgment which the plaintiff had recovered against the defendant and a release of the cause of action, on the ground that they had been procured by fraud, practiced upon the plaintiff by the defendant and, incidentally, to enforce the judgment. The defendant's answer was, that while it was true that the judgment had been entered against him in due form of law, yet it was in fact wholly void for the reason that no process had ever been served upon him, and, further, he denied all fraud in procuring the instrument of discharge and release. It appeared that many years ago, when the judgment was entered, that the defendant promptly moved to vacate it before the court in which it had been entered on the ground that no process had been served upon him. He was defeated in that motion and the order then made by the court set that question at rest by a proper adjudication. Hence, there was no attempt to re-try the question in this action and no evidence whatever was given on that issue. The defendant staked his case on the single issue of fraud, which the trial court found against him and the General Term in his favor.
The judgment was entered November 10, 1874, by default upon an assessment by a sheriff's jury, and the defendant's *357 motion to set it aside for non-service of process resulted in an order, made and entered November 21, 1874, which denied that motion, but permitted the defendant, upon paying costs, consenting to a reference of the cause and short notice of trial, to answer the complaint within ten days. He did not elect to answer, but, before the expiration of the time, procured from the plaintiff the discharge and release which the trial court found she had been induced to execute through fraud.
The ground upon which it is now proposed to sustain the action of the General Term in reversing the judgment upon the issue of fraud is, that inasmuch as the trial court, in its judgment, omitted to restore the defendant to the position which he occupied when he induced the plaintiff to sign the discharge and release, that is to say, to the right to answer and defend, the judgment is for that reason erroneous in point of law.
It should be noted that the defendant has not indicated in any way by his answer that he desired to make any defense to the original cause of action or had any defense to make. Nor did he in any way indicate that if the issue of fraud was decided against him that he desired to answer the original claim or the judgment or had any defense. He presented no issue except on the question of fraud and interposed no equities against the judgment.
Since the plaintiff, in her complaint in this action, not only asked the court to set aside the fraudulent discharge, but also to declare her judgment valid and to enforce it, and since that judgment had once been opened for any defense that the defendant had, it was competent for him in this action to interpose such defense as an equity against the judgment.
Moreover, the defendant did not in any way at the trial indicate by any motion, request or suggestion that he desired to answer or that any provision for that purpose should be made in the judgment. When this case was tried in 1893 it was, of course, impossible to put the defendant back to where he was in 1874. The trial court had no power except to try and dispose of the issues made by the pleadings. If the *358 defendant by his own fraud had lost the benefit of the order permitting him to answer, his remedy was to renew his motion in the court in which it was pending upon new facts. It may be that the trial court might have made that part of the decree which provides for enforcing the judgment conditional upon the failure of the defendant within a specified time to obtain permission to answer upon renewal of his motion. But the court was not asked to do even that, and the attention of the court was not in any way called to the question. It seems to me that we ought not to defeat the plaintiff's cause of action by rendering judgment absolute against her for no other reason than that the trial court omitted to give to the defendant a privilege or favor which he never asked.
The defendant was in default. He had omitted to avail himself of the order permitting him to answer. A part in default has no absolute right to relief, and he must at least ask for it. Even if the defendant had asked the trial court in this case for such relief and it had been refused, such refusal would not have been legal error It would clearly have been such an exercise of discretion as this court could not review. To predicate legal error, sufficient to warrant the reversal of a judgment, upon such a point would seem to be impossible. I am not aware of any reason why it is not yet open to the defendant to make his application by motion to the court in which the judgment was rendered to revive the order permitting him to answer the original complaint. It is true that it would be discretionary with the court to grant or refuse the motion; but, if that is so, how can we now say that the trial judge in this case committed a legal error in omitting to provide for precisely the same relief, especially when it was not called for by any pleading or requested at any stage of the trial? In the one case the court would, at least, have the question regularly before it in the form of a special motion. In the latter case the question was not before the trial court in any form whatever, and yet it is urged that he committed a legal error because his judgment setting aside the satisfaction and release was not also coupled with the permission to the *359 defendant to answer the original complaint, a favor which he did not consider of importance enough to him to ask the court to grant.
The powers and duties of the trial judge were confined to the trial of the single issue before him, which was that of fraud. The right of the defendant to open the default and plead in another action was not in any way before him. If the defendant had succeeded upon that issue he would have sustained the discharge and release, and there would not then be any necessity to plead. If he failed, his remedy was to do just what he was obliged to do in 1874, when in default, that is, to apply to the proper court by motion. The considerations upon which such an application is granted or denied had no place upon the trial of the issue in this action, and could not properly have been interjected into the trial. If the judgment cannot be sustained upon the ground that it was placed by the learned General Term, it seems quite plain to me that it cannot upon the new ground suggested. The order of November, 1874, imported much more than the right of the defendant to answer within ten days. It provided for a reference of the issues to be formed by such answer, and for the trial of such issues before the referee upon short notice. At the time of the trial of the present action before the Special Term the referee designated in the order was dead. If the trial judge in this case was bound, as matter of law, to preserve the status of the defendant in the former suit, it must follow, of course, that he was bound to make an arbitrary direction for the service of an answer, and also for the trial of the issue formed thereby by a referee to be designated by himself, and that such trial proceed upon short notice. If the trial judge had in fact, without any suggestion in the answer or from any source at the trial, inserted such a provision in the judgment, it might well be regarded as a very questionable exercise of power, and would afford to the defendant a much more serious ground of complaint than he now has. I cannot believe that the judgment of the trial court is fatally erroneous because *360 it failed to exercise such power without a suggestion to that effect from either party at the trial.
I think the order of the General Term should be reversed and the judgment of the Special Term affirmed, with costs.
ANDREWS, Ch. J., BARTLETT, HAIGHT and MARTIN, JJ., concur, with GRAY, J., for affirmance; VANN, J., concurs with O'BRIEN, J., for reversal.
Order affirmed and judgment accordingly.