186 A.D. 177 | N.Y. App. Div. | 1919
The complaint alleges that the defendants are husband and wife; that on or about October 10, 1900, the Phoenix Mutual Life Insurance Company issued two policies upon the life of Perley M. McNeil, the plaintiff’s husband; that one of these policies was payable to the estate of the insured, and the other to this plaintiff; that at the same time the Mutual Life Insurance Company of New York issued two policies upon the life of plaintiff’s husband, one of them payable to his estate and the other to the plaintiff herein; that on or about April 30, 1904, plaintiff’s husband was the insured and plaintiff was the beneficiary in a policy of the Phoenix Mutual Life Insurance Company for the sum of $1,000, “ and a policy in The Mutual Life Insurance Company of New York,” the number of which is given, but no amount; that on or about said April 30, 1904, the defendants stated and represented to plaintiff that it was necessary for plaintiff to sign certain papers in order to reduce the premiums on two other policies that had been assigned to Mary A. Cobb as collateral to a loan of $100 made to plaintiff’s husband and that the signing of the papers that the defendants presented to plaintiff at such time would not affect the plaintiff’s rights and interests in the aforesaid two policies of $1,000 each upon the life of the plaintiff’s husband, and that in the event of his death such moneys from such policies would be paid to plaintiff; that the plaintiff is an ignorant woman and unable readily to read or write, and believing the statements made by defendants to be true and trusting such defendants, signed the papers then presented to her by the defendants, but that the defendants knowing such statements to be false and knowing that the papers that they presented to plaintiff were absolute assignments of the aforesaid two policies of $1,000 each, payable to plaintiff upon the death of her husband, affixed her signature to such papers; that the defendants made such representations with the intent to defraud this plaintiff and secure to themselves any moneys that should become due under the aforesaid two policies of $1,000 each in the event of the death of the said plaintiff’s husband; that plaintiff’s husband died on the 24th day of May, 1912, and that the defendants collected the amount of the two policies involved
Obviously the theory of this action is that the defendants, by fraudulently misrepresenting the purpose of the signatures upon the papers presented, induced the plaintiff to give an absolute assignment of her interest in these two policies, and that, because of the fraud, such assignment is void and of no effect, and that the plaintiff is entitled to recover the sum collected by the defendants from the insurance companies. The answer of the defendants denies the material allegations of the complaint, in so far as the allegations of fraud are concerned, though admitting the fact of the issuing of the policies, etc., and particularly denies that the defendant J. Hunting Cobb collected any of the moneys, or that either of the defendants has converted any moneys belonging to the plaintiff.
There is absolutely no evidence in the case to establish the alleged false representation alleged in the complaint; no evidence whatever that the defendants or either of them asked or induced the plaintiff to sign the assignments in question on the theory that it was to permit Mrs. Cobb to be relieved of the payment of any part of the premiums on other policies, or that the plaintiff’s rights in the policies assigned were not involved. On the contrary, the plaintiff herself testified, in answer to her counsel’s question, “ What was said while you were there between you and Mrs. Cobb and the lawyer? ” that “ they brought a paper and told me to sign it for security for the $100 for the saloon,” and it is entirely obvious that the judgment is based upon this testimony of the plaintiff, and that the court has permitted an adjustment of the supposed equities between the parties.
No effort was made to conform the pleadings to this proof; to transform this action of conversion into one in equity; and while it is true that the defendants did not object to this testimony at the time it was brought out, they did move for a dismissal of the complaint at the close of the evidence, and they moved, after the coming in of the verdict, for a new trial upon the exceptions taken upon the trial; because the verdict is for excessive damages and because the verdict is contrary to the evidence and contrary to law; and upon
If the defendants had, by fraudulent misrepresentations, induced the plaintiff to sign away her interest in the policies in question she was clearly entitled to a verdict for $2,000. If the transaction was fraudulent the assignment was void, and a void thing is no thing; it could not be made the basis of any kind of a judgment for the defendants. The plaintiff, however, offers no testimony in support of the alleged fraud; she testifies that the assignments were made as collateral security for the sum of $100, and the evidence shows that at the time of the alleged assignments these policies had little or no value; that they would have to be kept in force by the defendants, and the evidence tends to show that all the premiums, subsequent to the assignment, were paid by the defendants. If the assignment was in fact made for the purpose of collateral security to a debt, and the defendants have been obliged to pay the accruing premiums in order to maintain their security, they were clearly entitled to have what they have paid refunded in addition to their debt, if principles of equity are to prevail.
But the fatal defect here is that the judgment is not based upon the allegations of the complaint and the proofs; both of these must concur in a valid judgment. The evidence of the plaintiff, upon which this judgment obviously rests, if at all, was not within any issué which the parties had framed. In such a case it is well settled that such evidence, though it may have been received without objection, must be disregarded on the hearing, and a decree founded on evidence of that character will be reversed. The rule is explicit and absolute, that a party must recover in chancery according to the case made in his bill, or not at all; secundum allegata, as well as probata (Thomas v. Austin, 4 Barb. 265, 272, 273, and authorities there cited; Chautauque County Bank v. White, 6 N. Y. 236; Rome Exchange Bank v. Eames, 1 Keyes, 588, 592, and authorities cited; Kelsey v. Western, 2 N. Y. 500, 506, 507; Stewart v. Sulger, 174 App. Div. 838, 841; Lamphere v. Lang, 213 N. Y. 585, 588; Jackson v. Strong, 222 id. 149, 154), and this rule applies equally to actions at
In the leading case of Southwick v. First National Bank of Memphis (84 N. Y. 420, 428) where one cause of action was pleaded and a judgment was entered upon a different theory, the court say: “ Here, although the defect in the complaint was pointed out in due time upon the trial, no amendment was asked for or ordered. This is not a case where the pleadings can after the trial be conformed to the proof, as such an amendment would change substantially the claim of the plaintiff as alleged. [Italics ours.] This is not a case of mere
“ But the rule that a party coming into court asserting one cause of action cannot recover on another and different one,” say the court in Reed v. McConnell (133 N. Y. 425, 434), “ is unchanged. * * * Where a cause of action is imperfectly stated, or on the trial a variance is disclosed between the pleadings and the proof, not affecting the essential nature of the claim asserted, the court has ample power to grant relief without turning a party out of court. But where the allegation of the complaint is unproved, not in some particular or particulars only, but in its entire scope and meaning, it is not a case of variance, but a failure of proof, and no judgment can be rendered in favor of the plaintiff upon the pleading as it stands.” “ This recovery,” say the court in the same case, at page 433, “ was in violation of the rule that no judgment can be sustained in favor of a plaintiff on a cause of action not alleged in the complaint, unless the defendant, by his silence or conduct, acquiesced in the trial of the new and different cause of action, upon which the judgment proceeded.”
The case of Truesdell v. Sarles (104 N. Y. 164) was a case much in point; the complaint alleged a fraudulent conveyance for the purpose of defeating the rights of creditors, and no fraudulent intent was shown by the evidence. It was held that the court erred in refusing a nonsuit. The court say: “ Upon the issues formed by the pleadings the question was whether' the evidence disclosed fraud either in fact or
In this case there was a total failure on the part of the plaintiff to prove the one fact alleged which went to the question of fraud. This was the one issue of fact between the parties, and when the evidence failed to establish this fact, the defendants had a right to have the complaint dismissed. To have amended the complaint would have been to materially change the character of the action, and this could not be done. The complaint, as it stands, still alleges the fact on which the conclusion of fraud might have been predicated, but the fact itself is wholly unproved; the plaintiff testifies that she was asked to sign the assignment as collateral security to her husband’s note, which might have given rise to some equities, demanding an accounting on the part of the defendants, but the complaint was for conversion. The jury has, in effect, found that the transfer was fraudulent to the extent of $1,900, while the evidence of the plaintiff is conclusive against her allegations of fraud and shows that the assignment was made as collateral security, and she is here trying to sustain a judgment in favor of the defendants for the amount of the security and of herself for the remainder. There is no allegation in the complaint upon which any such judgment can rest; it would be necessary to recast the whole
The judgment and order appealed from should be reversed, and a new trial granted, with costs to appellants to abide the event.
All concurred.
Judgment and order reversed on law and facts and new trial granted, with costs to the appellants to abide the event. The court disapproves of the finding that the execution of the assignment of the policies of insurance by the plaintiff to the defendants was procured by the false or fraudulent representations of the defendants.