Sprague v. Taylor

| Conn. | Mar 31, 1890

Thayer, J.

In the summer of 1885 the defendant, an attorney at law, was employed by one Kent to collect a deficiency judgment for the sum of $1,849.82, which had been rendered in September, 1874, by the Supreme Court of the state of New York against the plaintiff Daniel Sprague. At the time of such employment the defendant was not counsel for the plaintiffs, but he had been their counsel, and had been consulted by them in reference to this judgment and the bond upon which the judgment was based, and he believed that they would come to him or to his father for professional advice and assistance whenever any attempt should be made to collect the judgment. During a prolonged absence of his father in the south the defendant drew up a writ, wherein it was alleged that both of the present plaintiffs had executed the bond and that the judgment was against both, and, for the purpose of deceiving the plaintiffs and leading them to believe, if they came to him for advice and assistance, that he was not employed to collect the judgment, caused the writ to be signed, issued and delivered to an officer for service upon the plaintiffs by a brother attorney. The plaintiffs were served with the writ and immediately sought the defendant and employed and retained him as counsel to defend the action, and the defendant accepted the employment. He thereupon went the next day to Poughkeepsie and examined the records in the case wherein the judgment was rendered, and ascertained that the plaintiff Margaret Sprague was not liable either on the bond or the deficiency judgment. Upon his return, for the purpose of deceiving the plaintiffs, the defendant falsely and fraudulently told them both that Mrs. Sprague had signed the bond and was liable on the deficiency judgment, and advised that she had better settle the case which had been brought against them upon the most favorable terms she could obtain. Mrs. Sprague believed these false statements to be true and relied upon them, and upon the advice and counsel of the defendant and solely in consequence thereof and in accordance therewith, she paid $1,875 in settlement of the suit.

These facts were found by the Superior Court and judgment was rendered for Mrs. Sprague, in whose behalf the suit is prosecuted, for the whole amount paid by her. The defendant appeals.

It is alleged in the complaint that the defendant had been retained and employed by the plaintiffs and was their counsel at the time he caused the suit to be instituted against them. All the other facts found are substantially alleged in the complaint. Upon the trial the defendant claimed that the gist of the action against him was that, while employed by the plaintiffs as their attorney, he brought the suit against them, and that without proof of that allegation the plaintiffs could not recover. The court overruled the claim, and this constitutes one ground of the defendant’s appeal.

It is apparent from the complaint that the plaintiffs based their right to recover upon the fraud and deceit of the defendant. Every fact which is essential to constitute a case of actionable fraud is fully alleged. It- is averred that by reason of the defendant’s false representations Mrs. Sprague was defrauded out of the sum paid by her. The answer traverses specifically the allegation that the defendant made the fraudulent statements alleged. The issue of fraud is thus distinctly raised by the pleadings. As the complaint is not demurred to and all the 'allegations of facts constituting an action of deceit are found to be true, the plaintiff is entitled to recover although other facts are alleged in the same count from which it appears that she has another cause of action against the defendant. Practice Act, rule 4, sec. 13; Holly v. Brown, 14 Conn., 268. The allegation that the defendant was attorney for the plaintiffs at the time he brought suit against them was apparently made by way of introduction and as explanatory of the relations of the parties at the time the representations were made. It appears that while he was not their attorney when the suit was brought he had been retained by them before the false representations were made.

The defendant upon the trial offered evidence to prove that the real estate which was mortgaged as security for the money paid in settlement of the Kent suit was purchased with money belonging to the plaintiff Daniel Sprague, and that the title was taken in the name of Mrs. Sprague with her full knowledge, for the purpose of defrauding the holders of the Kent judgment in preventing them from collecting the same. The court excluded the evidence,' and this ruling constitutes the defendant’s remaining ground of appeal.

The evidence was offered for the following purposes :— first, to show that the plaintiffs had suffered no damage; second, to disprove the allegations in the complaint, and contradict the testimony of Mrs. Sprague, that the $1,875 paid by her was her property; third, to show that the motive which induced the plaintiffs to pay the money was not the one alleged in the complaint, but was the belief on their part that the Kents could subject the property in question to the payment of their judgment; fourth, to contradict the testimony of Mrs. Sprague that the defendant had made false statements to her, and to corroborate the testimony of the defendant that he did not make them ; fifth, to show the condition of the property in question and the whole circumstances concerning the agreement and arrangements about it; sixth, to show the full knowledge of both Mr. and Mrs. Sprague that the Kent judgment was against him and not against her.

This suit was brought in behalf of Mrs. Sprague. The court finds that she was not liable on the bond or judgment upon which the Kent suit was based. She was led by the defendant’s fraudulent representations to believe that she was liable. She borrowed the money and paid it to discharge that liability and was damaged thereby. It makes no difference whether the property mortgaged to secure the loan of that money was her property, her husband’s or a stranger’s. It was alleged in the complaint, it is true, that she raised the money by a mortgage of her property; but that allegation was wholly immaterial. By rule of court proof of allegations of facts wholly immaterial to the right claimed by the pleadings will, on objection, be excluded, and the same is of course true with regard to proof offered to rebut such allegations. The evidence was therefore inadmissible for the first two purposes for which it was offered.

The existence of the facts sought to be proved is entirely consistent with the fact that the defendant made the false representations testified to by Mrs. Sprague. The evidence therefore would not contradict her testimony or corroborate that of the defendant that he did not make the representations. It was inadmissible therefore for the fourth purpose for which it was offered.

As the evidence under consideration was the only evidence objected to, and as that evidence neither contradicts the' plaintiff’s testimony nor corroborates that of the defendant, we are to assume to be proved the fact found by the court, that the false representations were made. Was the rejected evidence admissible for the third purpose for which it was offered, namely, to show that these false representations were not the motive which induced Mrs. Sprague to pay the money? The most that can be claimed is, that in the absence of other testimony they would show a motive for the payment. Had the defendant proposed to go further and show that the money was actually paid from this motive, the evidence would have been admissible as showing that the false representations were not believed and acted upon. But the finding shows no such offer. It appears that the evidence was offered to prove an independent collateral fact—to show a motive, other than the false representations, which the court might be asked to infer was the one which induced the payment. When offered for such purpose it was properly excluded. It is conceded and is unquestionable that the defendant’s false representations need not have been the sole inducement which influenced Mrs. Sprague. Bigelow on Fraud, p. 544, and cases there cited. The plaintiff testified that she relied upon the defendant’s representations. In such a case it is incumbent upon the defendant to prove that the false representations were not relied on. It is not enough for him to say that there were other representations or other circumstances which might have been the operative inducement. Kerr on Fraud and Mistake, 75 ; Opinion of Lord Justice Turner in Nicol’s Case, 3 De Gex & Jones, 439.

The defendant argues that if the attached property was shown to be the husband’s and not the wife’s the false representations would constitute no motive for her settling the suit. He says that it was the sole ownership of the property by the wife which made the false representations of the defendant in any sense an inducement for her to settle. He thus assumes that the Kent suit was merely a proceeding to subject the attached property to the payment of the debt. This is the fallacy of his argument. That suit was not a proceeding against the property. It was an action for damages. The attachment was a mere incident to the suit. It nowhere appears that Mrs. Sprague had not other property sufficient to satisfy the judgment. If persuaded that she was liable upon the bond and judgment, that would be a sufficient inducement to her to settle the suit, regardless of the ownership of the property. In that case indeed the facts offered to be proved would constitute no motive for the payment, because, if she believed herself to be jointly liable with her husband on the bond and judgment, she would regard the attached real estate as equally subject to the payment of the debt -whether it was her husband’s property or her own. As the Kent suit did not relate to the. real estate, the condition of the property and the agreements and arrangements concerning it were irrelevant and immaterial.

It is claimed that knowledge of the purpose to defraud the holders of the Kent judgment by taking the title to the real estate in the wife’s name necessarily includes knowledge of the main fact that the husband alone was liable on the judgment. That both husband and wife believed the fact to be so is obviously all that could be inferred from the rejected testimony. It is alleged in the complaint that at the time she retained the defendant Mrs. Sprague believed that she was not liable on the judgment and so informed the defendant. It was not necessary for the defendant to prove what the plaintiff admitted by the pleadings.

There is no error in the judgment complained of.

In this opinion the other judges concurred.