110 N.Y.S. 416 | N.Y. App. Term. | 1908
Lead Opinion
The plaintiff brought this actions-to recover damages for false and fraudulent representations, alleged to have been made by the defendant, in asserting that he was authorized by one Stokes to purchase of the plaintiff a quantity of goods. Acting upon such alleged false statements the plaintiff was induced to deliver the goods to the defendant upon the credit of Stokes. The complaint-contained all the necessary allegations, setting up fraud, deceit, etc. The action came on for trial, and, upon motion of the defendant, the trial justice directed a verdict in his favor. It was conceded that prior to the commencement of this action the plaintiff had brought an action -against Stokes for goods sold and delivered. The summons in that action is one of the exhibits in this action, and the indorsement thereon shows that judgment was rendered for Stokes, the defendant therein. The evidence taken in that action is not before this court. It was also conceded in this action that, in the action against Stokes, the question of fraud and deceit was not involved, but that such action was tried upon the theory of agency on the part of this defendant to act for Stokes and of ratification of the sale by plaintiff to Stokes. Mo appeal was taken from the Stokes judgment, and the time to do so had expired when the -present action was brought The defendant also requested the plaintiff’s attorney to admit “ that, before the time of the beginning of the other action, Mr. Stokes had repudiated Beard’s authority to bind him by the purchase and that -that fact was known to the plaintiff.” To this the plaintiff’s attorney said: “ I desire to modify that by showing that Mr. Stokes took two positions; he took no final position one way or the other; he at first ratified it and then repudiated it. I was a witness in that case myself, and it was all based upon my testimony.” The court: “ His final act was repudiation ? ” Plaintiff’s counsel: “ Yes, he practically repudiated it finally.” The court: “And'then you commenced an ac
Judgment reversed and new trial ordered, with costs to appellant to abide event.
Concurrence Opinion
The case of Terry v. Hunger, 121 N. Y. 161, has no application to this for two reasons: First, it must appear that the party electing was aware of all the necessary facts which would enable him to elect; and, secondly, the remedies must be inconsistent.
In this case there is no proof that the plaintiff knew that Mr. Stokes had revoked or repudiated the defendant’s agency at the time when the alleged fraud was perpetrated upon it. All that appears in the record is that Mr. Stokes, prior to the commencement of the action against him by plaintiff for goods sold and delivered, claimed that he had repudiated defendant’s agency—quite a different matter from knowledge on the part of plaintiff that it knew that Mr. Stokes’ claim was true.
The very circumstance that it sued' Mr. Stokes was evidence that it did not believe that defendant’s agency had been repudiated. There could not possibly have been any recovery against Stokes except upon the theory of defendant’s agency.
There was no inconsistency between the bringing of the Stokes’ action -and this. The former action, as already observed, rested upon the assumed agency of defendant. That not having been established, or it having been affirmatively shown that defendant was in fact not the agent of Stokes, it was peculiarly appropriate and not inconsistent to proceed against the defendant for fraud upon the ground that he obtained the goods in question upon his representations that ho was the agent of Stokes.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Giegerich, J., concurs in result.
Judgment reversed and new trial ordered, with costs to appellant to abide event.
