190 A.D. 600 | N.Y. App. Div. | 1920
The plaintiff has recovered judgment herein against the defendant for the sum of $13,396.64. The judgment was upon a verdict of the jury at Trial Term, who found in plaintiff’s favor and against defendant in the sum of $13,234.96. The action was for fraud. Plaintiff sought to recover of defendant the sum of $18,631.20, which sum plaintiff claimed it was induced to overpay defendant for certain rifle gauges and fixtures furnished by defendant to plaintiff upon contract. Plaintiff claimed to be entitled to recover said sum on account of certain fraudulent representations of the defendant and fraudulent and padded bills presented by him representing the cost of manufacture of said tools and fixtures. The total amount paid defendant by plaintiff for said gauges and fixtures was $72,625. In its complaint plaintiff alleges that by reason of said false and fraudulent representations and dishonest bills presented by defendant it was induced to overpay defendant in the sum for which judgment was' demanded.
The plaintiff, Remington Arms Company, was incorporated on or about June 1, 1915, under and in accordance with the laws of the State of Delaware. Its principal place of business was at Eddystone, Penn., and it was organized for the purpose of manufacturing Lee-Enfield rifles for the government of Great Britain. The evidence would seem to indicate that the plaintiff corporation was organized as a subsidiary com
The defendant denies the making of any such contract as that claimed, by the witness Fitzgerald in behalf of the plaintiff. Defendant testified that the contract which he made with the plaintiff was negotiated with one Wells, its equipment engineer, at 'Bridgeport, Conn., and one Palmer, its purchasing agent at its Bridgeport plant. The defendant denies ever seeing Fitzgerald until some months after the contract in question was made. Some correspondence was offered and received in evidence which throws some light upon the arrangement between the parties. It is not claimed by
Fitzgerald testified that he talked with the defendant in June, 1915, and that the defendant then represented that he had a manufacturing plant of his own wherein he could manufacture the gauges and other tools required by the plaintiff, and that it was then and there agreed that defendant should furnish the tools in question upon plaintiff’s order upon the consideration aforesaid, and that no charges were to be made for inspection, or for foremen not engaged in the actual mechanical work, and that no charge was to be made for apprentices learning the trade in defendant’s plant. All overhead charges, according to Fitzgerald’s testimony, were to be borne by the defendant, and defendant was to charge only the cost of materials used and the actual time spent by mechanics in the work.
The defendant denies in toto the making of the contract claimed by Fitzgerald, and testified that the contract under which he furnished the plaintiff its tools was made by the said representatives of the plaintiff’s plant at Bridgeport, Conn. Upon the trial the defendant sought to prove the conversations and transactions which he had with Wells and Palmer, of the Bridgeport company. The evidence shows clearly that there was but one contract between these parties, and that the goods furnished thereunder, amounting to $72,625, were furnished pursuant to a single contract. These goods were paid for by the Remington Arms Company of Eddystone, the plaintiff herein, but it clearly appears by the evidence that the contract itself was made at Bridgeport. Fitzgerald testified to the negotiations being carried on and the contract being made with the defendant at Bridgeport, Conn. The defendant testified that the contract was made at Bridgeport, Conn., but was not made with Fitzgerald, but was, in fact, negotiated and closed with Wells and Palmer of the Bridgeport plant. Under objection of counsel for the plaintiff, defendant was not permitted to testify to the conversations or transactions
The plaintiff claims that the defendant presented certain fraudulent bills; that the defendant charged against the plaintiff the expense of supervision as well as the time of foremen and apprentices, in violation of the terms of his contract. The plaintiff further charges that bills from subcontractors to whom defendant sublet the manufacture of certain of the tools in question, not only contained charges for supervision, foremen and apprentices, but false entries as to the hours devoted to the manufacture of the tools, and that when the defendant presented his bills to the plaintiff that he himself proceeded to add on additional hours and additional charges for inspection. In other words, it is the contention of the plaintiff that in direct violation of his' contract with the plaintiff, defendant did not confine his charges to the actual time spent by skilled mechanics in the manufacture of the tools, plus the material used, but that he included therein charges for apprentices, charges for foremen and charges for inspection, and other unauthorized charges, amounting to the sum for which judgment was asked.
The trial court presented to the jury the question of fraud, and a verdict was rendered in favor of the plaintiff. Upon this appeal the defendant, appellant, does not criticise the verdict rendered by the jury upon the evidence before it, the defendant, appellant, assailing the judgment appealed from because of errors of the trial court in the rejection of testimony of the defendant as to conversations with the representatives of the Bridgeport plant, and transactions resulting in the
I think the defendant should have been permitted, under the circumstances, to testify to the contract under which he claimed to have furnished the plaintiff with the gauges in question. I think the evidence indicates beyond question that not only was the contract made at Bridgeport, Conn., but that it was made by representatives of the Bridgeport company or, at least, that Wells, its equipment engineer, and Palmer, its purchasing agent, participated therein. Moreover, the defendant, denying that he ever entered into any contract through the instrumentality of Fitzgerald, and denying the making of the contract claimed by the plaintiff, should have been permitted to show just what the contract was and with whom made under which the tools were furnished plaintiff. Fitzgerald testified that he negotiated the contract early in June, but on cross-examination, upon being confronted with a letter written on the stationery of the Remington Arms and Ammunition Company of Bridgeport, Conn.,- he was not sure that he had any conversation with the defendant prior to June 12, 1915. He testified that at the time of the trial he was an equipment engineer of the plaintiff corporation. He testified that at the time of the negotiation of the contract he was an equipment engineer, but did not testify that he was in the employ of the Connecticut corporation, and did not testify that he was then in the employ of the Pennsylvania corporation. His testimony was that the Connecticut company referred to him the names of many persons who desired to furnish the materials required by the plaintiff, and that the defendant’s name came to him through the employees of the Bridgeport company. He testified that Wells was supplying equipment for the Bridgeport plant and that Palmer was the purchasing agent. He did not deny that some of the negotiations were carried on through the purchasing department of the Bridgeport company. The defendant denied plaintiff’s version, and testified that he did not talk with Fitzgerald prior to the making of the contract in question; that Fitzgerald came into the matter many weeks after the contract was made. Defendant insisted that the contract was made directly with the Remington Arms
It seems to me that the correspondence offered in evidence indicates quite conclusively that the contract was made as defendant claims, with the Bridgeport company, through Wells and Palmer, its equipment engineer and purchasing agent. The first letter offered in evidence was dated June 8, 1915. This letter was addressed by the defendant to the Remington Arms and Ammunition Company of Bridgeport, Conn., and the matter contained in the communication is called to the “ Attention Major Penfield.” Penfield was at the time an officer of the Bridgeport company. This letter calls said officer’s attention to the fact that the defendant was in a position to handle jig and fixture work; also some gauge work, and sought an opportunity to negotiate with the Remington Arms and Ammunition Company of Bridgeport, Conn., with reference to said company’s requirements of such goods. The next letter received in evidence was under date of June 12,1915, and was written by the defendant to the Remington Arms and Ammunition Company of Bridgeport, Conn. This letter was addressed to “ Attention Mr. Palmer,” and at thebottom appears a notation over the signature of H. E. Wells, the equipment engineer of the Bridgeport company. This letter of the defendant to the Bridgeport concern, among other things, stated:
“ Referring to the writer’s visit of yesterday to your works, would advise that I can undoubtedly handle all of your gauge work. This I will do for ninety cents per hour and cost of material, plus ten per cent, for handling charge, f. o. b., New York City.”
This letter conclusively shows that up to at least its date on June 12, 1915, the negotiations were between the defendant and the Bridgeport company, and that Palmer and Wells were active in negotiating the contract. This letter refers to the same price per hour as that to which Fitzgerald testified, and undoubtedly referred to the contract under which defendant finally furnished plaintiff with the tools. Had the defendant been permitted to prove just what the conversation was between himself and Palmer and Wells of the Bridgeport company, it is likely that an entirely different contract from that to which Fitzgerald testified would have been shown.
“ Established 1816
“ Remington Arms and Ammunition Co., “ Bridgeport Works,
“ Bridgeport, Conn.
July 3, 1915.
“ Mr. H. W. Cotton,
^ OQQ "RvAftrl-nroT 233 Broadway,
“ New York City:
“ Dear Sir.— (1) Will you kindly note that all material ordered by our order No. 2108 was ordered for our Philadelphia Plant, and, therefore, is to be held for shipping instructions, which you will receive at a later date. Under no circumstances are goods on this order to be forwarded to the Bridgeport Works.
“ (2) In billing this material, the invoice should be sent to the Remington Arms Company of Delaware, Eddystone, Pa.
*609 “ (3) Please note that these instructions apply only to material on the order number as stated above.
“ Very truly yours,
“ REMINGTON ARMS & AMMUNITION CO.,
“ Bridgeport Works,
“ O. P. Palmer,
“ W. M. N. /K. Me. Purchasing Department.”
Thus as late as July 3, 1915, correspondence between the parties was carried on by the defendant with the Bridgeport corporation, and on said date that company was instructing the defendant to send all material “ ordered by our order No. 2108 ” to the Eddystone, Penn., plant.
The defendant here is charged with fraud in respect to the execution of the contract. He was entitled to show not only that no such contract as that claimed by plaintiff was ever made, but was also entitled to show all of the facts relative to the contract which he performed. I think the refusal of the trial court to permit the defendant to show what the transactions were with representatives of the Bridgeport company constituted reversible error, and that a retrial of the issues must be directed.
The appellant raises other questions as to the admissibility of evidence of the defendant which was received upon the trial. As our determination will direct a new trial of the issues, it is expedient that we consider defendant’s objections to the reception of such evidence.
The plaintiff claims that when the contract was made defendant represented that he had a plant of his own wherein the tools required by plaintiff were to be manufactured. The evidence shows that at that time the defendant had no plant of his own. The defendant, however, thereafter built a plant which went into operation about November 1, 1915. The testimony upon the trial does not indicate that the plaintiff particularly objected to defendant’s subletting to others the manufacture of the tools in question. For the evident purpose of checking up on defendant the plaintiff sent out two alleged expert accountants or auditors to visit the plants where the tools were being manufactured. These auditors visited the
The appellant also asserts that the court erred in admitting in evidence certain entries in the books in question, and that such entries were not admissions as against the defendant, as he was not a privy thereto. I think under the issue of fraud involved in this action there is no merit in such objection. The time sheets and such books as were procurable were offered in evidence, and the auditors stated the facts which the books disclosed from an inspection thereof. The books were at all times in the possession of the defendant and his subcontractors, for whose acts, so far as the plaintiff is concerned, the defendant should be held responsible.
I think the court clearly erred in rejecting the testimony offered by the defendant as to the actual transactions leading up to the making of the contract in question.
The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide event.
Clarke, P. J., Laughlin, Smith and Page, JJ., concur.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.