79 N.Y.S. 699 | 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 8th, 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 27th, and, from anything which appears in the complaint, the later agreement of May 8th has no existence. This did not, however, eliminate it from the case. It being averred in the answer as matter of defense, the plaintiff was required to meet it by showing that it was either legally insufficient, or that it had no effect as matter of fact. It was not necessary for the plaintiff to traverse the answer, either
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 8th 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,
“If the subsequent agreement is accepted in satisfaction, and this appear expressly or by implication,. the original cause of action is merged and extinguished. Kromer v. Heim, 75 N. Y. 574, 31 Am. Rep. 491, and cases cited. It is plain, also, that if one having a debt or claim against another satisfies or releases it in consideration of an executory promise by the party owing the debt or duty, he cannot afterward enforce his original cause of action upon a mere failure by the other party to perform his promise ‘for he has a remedy to compel performance.’ ”
Nassoiy v. Tomlinson, 148 N. Y. 326, 42 N. E. 715, 51 Am. St. Rep. 695.
The decision, therefore, cannot be supported upon this ground. '
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 8th 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 8th 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 defendant 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 N. Y. 300, 30 N. E. 105; Cooley, Torts (2d Ed.) p. 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
It is evident that the present judgment cannot be sustained. It •should, therefore, be reversed, and a new trial granted, with costs to the appellants to abide the event. All concur except INGRAHAM, J., who dissents in part.
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 that the defendants were guilty of any false misrepresentations which would justify the plaintiff in repudiating the
I concur, therefore, in the reversal of the judgment.