78 A.D. 151 | N.Y. App. Div. | 1903
Lead Opinion
So far as is material to the disposition of the present appeal, it is only necessary for us to determine the effect of the letter of May eighth, the rights and liabilities of the parties arising therefrom, and the determination of the court based thereon.
The plaintiff in his complaint stands squarely upon the agreement of March twenty-seventh, and from anything which appears in the complaint the later agreement of May eighth has no existence. This did not, however, eliminate it from the case. It being averred
We do not find ourselves in harmony with these views. The contract itself refers in its first sentence to the former contract of March twenty-seventh between the parties. It then refers to a conversation had that day between the defendant Hyde and the plaintiff, and recites that, as agreed upon, the plaintiff will be entitled to receive 375 shares of preferred and 375 shares of the common stock of the Goodson Graphotype Company in the event of its formation, “ which stock shall be in full for your services and all demands under my letter to you of March 27th, 1899.” This was something more than a statement of an amount due to the plaintiff. It was not only that, but it was a statement that such amount due was in full for all services and demands which the plaintiff had against the defendants by reason of his former contract with them. When the
Was it invalid for other reasons? It is not made clear by the proof in the case just what sums of money and shares of stock the plaintiff was entitled to under his former agreement. It was not accurately known at the time when the agreement of May eighth was executed by any of the parties to the action. It is not yet known what the exact amount was to which the plaintiff was entitled, nor can it be established except by an accounting. The parties, therefore, at the time of their negotiations stood in relation to each other of dealing with respect to a matter where the defendants were required to pay and deliver either money or shares of stock, or both, to the plaintiff in compensation for services which he had rendered pursuant to the several contracts which had been made. As the particular amount of money and stock which plaintiff was entitled to receive was not accurately known, it was competent for the parties themselves to agree as to such amount, fix and specify the particular number of shares of stock which were to be delivered in full satisfaction of the whole amount of property and money due. And in the absence of mistake or fraud in making such agreement, it would be binding upon both, and conclusively fix the rights of the respective parties thereto. Such a contract is founded upon a good consideration, for the reason that each pai’ty renounces to the ether his rights • and liabilities under a former contract, and each abandons such rights in consideration that the other will do the like, and the mutual agreements furnish a consideration in law, recognized as binding. (McIntosh v. Miner, 37 App. Div. 483; Hartwig v. American Malting Co., 74 id. 140.)
hi or does the fact that the agreement of May eighth was executory in its character change its effect. It was said by Andrews, J., in Morehouse v. Second Nat. Bank of Oswego (98 N. Y. 503): “ If
Upon the trial evidence was given which the plaintiff claimed tended to show that the defendant Hyde had been guilty of fraud in making false representations as to the amount and extent of the plaintiff’s interest in the pool; that the plaintiff was ignorant in respect of such matters, relied thereon and was misled thereby, in consequence of which the contract of May eighth is void for fraud. There was a sharp conflict in the testimony upon this question. The defendant Hyde denied that he had ever made any misrepresentations, and adduces testimony from other witnesses in support of his contention. The court, however, has not found upon such question. It is stated in the decision that prior to the acceptance by the plaintiff of the contract of May eighth the defendant Hyde made statements to the plaintiff as to the amount of profits coming to the plaintiff, which statements were not true; that they were relied upon by the plaintiff, who was ignorant of the actual facts. This falls far short of a finding that the defendants made the representations, knowing them to be untrue, with the intent that they should be acted upon by the plaintiff, and that in reliance thereon he so acted. This the law requires in the establishment of fraud. (Oberlander v. Spiess, 45 N. Y. 175 ; Kain v. Larkin, 131 id. 300; Cooley Torts [2d ed.], 580 et seq.)
It is sufficient to say that even though the proof upon the part of the plaintiff was sufficient from which every element necessary to a finding of fraud could be based, the court has not made such finding, and, consequently, the evidence may not be resorted to for the purpose of sustaining the judgment, although such a finding might have been authorized. It is quite evident that in reaching a conclusion upon this subject the court will be confronted with several
If the defendants’ construction of the contract of March twenty-seventh is to obtain, then, under the agreement of May eighth, the plaintiff may have received more than the exact amount to which he is entitled. These questions will all arise upon a new trial, and until all of the facts are before us we are not called upon nor would it be proper to announce a construction as binding upon either party to this litigation.
Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred.
Concurrence Opinion
I concur with Mr. Justice Hatch, except so far as it seems to be intimated in his opinion that there was evidence which would justify a finding that the defendants were guilty of any false misrepresentations which would justify the plaintiff in repudiating the contract of May 8,1899. The only representation testified to by the plaintiff which he said induced him to agree to the contract of May eighth was the defendant Hyde’s statement that the pool profits amounted to 2,475 shares of stock, and that the plaintiff’s share, under the contract of March 27,1899, would amount to 361 and a fraction shares. He testified that he told Hyde that he would accept 361|- shares upon the representation that 2,475 shares was the only profit that there was belonging to the pool, and Hyde then drew up the contract of May eighth which was clearly intended as a substitute for the prior contract as to the compensation that plaintiff was to receive. The plaintiff’s action was based upon the contract of March twenty-seventh and he asked for an accounting. In answer to this cause of action the defendants plead that the contract of March twenty-seventh was modified by the contract of May eighth, and that under that contract the plaintiff was entitled to receive a certain number of shares of stock which had been tendered to him and which they still hold for his account.
Assuming that the plaintiff was, upon proof by the defendants of the contract of May eighth, entitled to prove that that contract was obtained by fraud, the burden was upon him to prove that the representations were made to him upon which he relied in executing the contract of May eighth ; and that those representations were false and were known to be false by the person making them. I can find no evidence that the representations that Hyde was alleged to have made were false. The representations were that the pool profits were a certain number of shares of stock. There was proof that two days before a contract had been made in
I concur, therefore, in the reversal of the judgment.
Judgment reversed, new trial ordered, costs to appellant to abide event.