29 N.Y.S. 3 | New York Court of Common Pleas | 1894
The action is in equity, to cancel a satisfaction of judgment, a release, and a countermand of execution, on the ground that they were procured by the fraudulent misrepresentation of the defendant. The misrepresentation imputed to the defendant in the complaint is “that he was interested, as a copartner, in the mercantile house or firm of E. S. Higgins & Co., and that if the recovery of said judgment became known to his said copartners they would dissolve their said copartnership with him, eject him from said business, and entail upon him financial ruin; that his said interest in said copartnership was a lucrative one, and would enable him soon to pay said judgment, which he then promised to do if she would only permit him to retain the said interest, by releasing said judgment.” The representation charged, it will be observed, is that the defendant was then a member of the firm of E. S. Higgins & Co., and that his interest in the copartnership was an existing interest, of present value. The representation found by the learned trial judge is “that he was interested, or was about to become interested, as a copartner, in the mercantile house or firm of E. S. Higgins & Co., and that if the recovery of said judgment became known to his said copartners they would dissolve their copartnership with him, or would not allow him to become a partner, and would eject him from said business, both as a partner and as a clerk, and would entail upon him financial ruin; that his said interest in said copartnership was, or was to be, a lucrative one, and would enable him to soon pay said judgment, and thereupon promised and agreed to pay the'same, if the plaintiff would permit him to retain said interest, by releasing said judgment and executing said papers.” From this finding of fact, coupled, of course, with the requisite imputation of bad faith, and from this finding alone, the trial court deduced the legal conclusion that the release and satisfaction “were obtained by fraud and deceit, and that the same are void, and should be vacated and set aside.” At first blush, it may be thought that the finding ascribes to the defendant the alternative statement that he was, or was about to be, a partner, but upon an attentive reading the impression vanishes. Indeed, were such the true construction of the finding, it would not be the representation alleged in the
Waiving the defect in the finding of fact, and still it is impossible to uphold the judgment. If we assume the finding to be that the defendant represented himself as a present partner, with an .actual interest in the firm, it is against the clear and decisive av eight of evidence. Before going to the lawyer’s office, the plaintiff had already resolved and agreed to give the release and satisfaction. The misrepresentation, therefore, by which the alleged fraud was accomplished, occurred in the preA’ious interviews between the plaintiff and defendant; and yet she does not pretend that he represented himself as a present, but only as a prospective, port
If the action be supposed to proceed upon the alternative finding that the defendant fraudulently represented that he was to become a partner, and to have a future interest in the firm, the judgment is still untenable: First, because the proof is only that he did not in fact become a partner, and no evidence was adduced to show that he-had not expectation of a partnership; secondly, because one’s anticipation of a future partnership, no matter how confident may be the honest delusion of a sanguine temperament, and at all events, is the promissory statement of which the law refuses to predicate actionable fraud. “Actionable fraud consists either in misrepresenta Lion or concealment as to the existence or nonexistence of some fact or-circumstance.” Farrington v. Bullard, 40 Barb. 512, 516. “Fraud arises from the assertion of the existence in praesenti of a fact.” Treacy v. Hecker, 51 How. Pr. 69, 70. “It is difficult to see how an action can be based on the expression of hopes, expectations, and beliefs.” Sawyer v. Pritchett, 19 Wall. 146, 163. “To warrant an action for a deceitful representation, it must assert a fact as-existing in the present tense.” Gallagher v. Brunell, 6 Cow. 347. “A mere promise of something in the future cannot be regarded as' a fraudulent representation of an existing fact.” Lexow v. Julian,. 21 Hun, 577. The finding involves a predicament of contradictory facts. If the defendant was only to become a partner in the future, it could not be that he was already a partner; and, if he was already a partner, it could not be that he was yet to become a partner. But, between inconsistent findings, the appellant is entitled to the benefit of the fact most favorable to him, in aid of his-exceptions to the conclusions of law. Bonnell v. Griswold, 89 N. Y. 122; Kelly v. Leggett, 122 N. Y. 633, 25 N. E. 272; Schwinger v. Raymond, 83 N. Y. 192. Conceding, then, to defendant, that his representation was of an expected partnership and a future interest in the firm, it is an insufficient support for the judgment, because not shown to be untrue, because not constituting legal fraud,, and because not the fraud charged in the complaint.
The points discussed are duly presented in the record; but, indeed, to challenge the correctness of the judgment at general term,, no exception is necessary. Roberts v. Tobias, 120 N. Y. 1, 23 N. E.
As the judgment must be reversed, the appeal from the order requires no consideration. Judgment reversed, and new trial directed; costs to abide the event.
