The motion was made upon the papers alone upon which the order was granted. The action was brought to recover damages for the breach of two contracts, and the ground of arrest was that the defendant was guilty of fraud in contracting or incurring the liability. The sheriff was by the order required to hold the defendant to bail in the sum of $10,000. One of the contracts alleged in the complaint was, that the defendant on or about the 29th day of December, 1895, agreed to sell and deliver to -the plaintiff sixty-two-first mortgagе bonds (each of the par valué of $500) of a series of 200 bonds, issued by the Connersville Gas and Electric Company, at the agreed price of $24,800, payable $10,000 in cash and $14,800
A recovery was sought upon both causеs of action for the sum of $27,033.12, besides interest, being for the sum total of the two amounts, $9,300 and $18,033.12. The allegations of the complaint were supported, upon the application for the order of arrest, by the affidavits of the plaintiff and another witness. The result of these allegations was that the plaintiff had paid to the defendant' under thesе contracts, in cash,, $10,000 and $9,783.12; in all, $19,783.12, and had received from him bonds, worth $21,700 and $7,700 '; in all, $29,400, the plaintiff thus receiving $9,608.88 more than he paid out.
The condition of things showed, therefore, that the plaintiff had made a profit in the transaction of $9,616.88, if his bonds were taken at their real value, He claimed, however, that he was entitled to bonds worth $18,300 more than their real vаlue, and deducting profit above, $9,616.88, from this amount, would leave his actual loss $8,683.12. And yet he sought to recover $27,033.12. It seems to us, however,, that the fraud alleged and shown by the affidavits was not one committed in making the contracts, but in the so-called ostensible performance of them. The contracts to sell and deliver first mortgage bonds were merely executory. There could not be said to be any fraud in making the contracts themselves.- Defendant could only perform the contracts by delivering the bonds described therein. ■ If he failed to deliver such bonds there would be breaches of the contracts. The plaintiff was not obliged to accept any other bonds or to pay the сontract price, and the damages would result from the ■ breaches and not from ■ any fraud in making the contract, and they would be the difference between the / contract price and the actual value of the bonds agreed to be delivered.
The fraud really consisted in the defendant’s delivering second ' mortgage bonds instead of first mоrtgage bonds, and concealing from plaintiff the fact that they were second mortgage bonds, rep-. resenting them to be first mortgage, bonds; and the damages occа- . sioned by the fraud extended only to the money actually received by the defendant from the plaintiff, less the actual value of the bonds •
The plaintiff had no occasion to sue defendant under the first, contract. Whenever the defendant attempted to recover the real estate from the plaintiff or the value thereof, $11,800, plaintiff could allege the fraud and breach of the contract by defendant and offset or recoup his damages. As to the second contract the plaintiff could sue defendant for the damages resulting from the delivery of the twenty-two bonds, and damages for breach of the contract in not delivering the bonds described in the contract.
The present action is not, however, brought to recover damages occasioned by defendаnt’s fraud. It is purely an action upon the contract to recover damages for the breach thereof, and the order of arrest was granted upon the distinct ground thаt the defendant was guilty of fraud in contracting or incurring his liability under the contract. There was, as we have seen, po fraud in contracting or incurring such liability, that is, for breach of the contracts, and, therefore, the order of arrest was improperly granted. This was not the case of an executed contract, where the bonds were sold and delivered at the time, and there was fraud and misrepresentation as to the nature of the bonds so sold and delivered. In such case it might be said there was fraud in contracting or incurring the liability, and such fraud could be made, the basis of an order of arrest. Here the contracts were executory. The defendant promised to deliver bonds of a certain description at a future time; and the mere promise to do this in the future, even if the intention was to deliver other bonds, would not constitute such fraud as would vitiate the contracts. The contracts would be valid, and could only be performed by delivering-the bonds described therein.
The bonds here were delivered subsequent to the mаking of the contracts, but they were not such as were agreed to be delivered" and, hence, there were breaches of the contracts. The alleged pеr
Other questions are raised on this appeal, but it is unnecessary to consider them, in. view of the conclusion reached by us as to the questions already considered.
The order appealed from should bе reversed, with ten dollars costs and disbursements to the appellants, and the motion to vacate the order of arrest be granted, with ten dollars costs.
Yan Brunt, P. J., O’Brien and Ingraham, JJ., concurred; Patterson, J., concurred in the result.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.