23 N.Y.S. 46 | N.Y. Sup. Ct. | 1893
The action was to recover money paid to the defendant by the plaintiffs, induced thereto, as alleged, by certain false representations made by the former to the latter. The narrative of the case, leading up to the allegation of false representations, is, in substance, as recited in the complaint, and, somewhat more at large, as follows: In and before the year 1879, one Pemberton was the owner of an undivided interest in a small tract of oil land situate in McKean county, in the state of Pennsylvania. He was a borrower of money, arid in January of that year he gave to one Skidmore a mortgage on the interest mentioned to secure the payment of all notes, to the amount of $2,500, “indorsed or to be indorsed” by Skidmore for him. In February of the same year, Skidmore assigned the mortgage to the defendant as collateral security for the payment of all notes so made and indorsed which should be discounted by it, and in March the mortgage and assignment were both recorded in the proper office in McKean county. In February, 1881, Pemberton and wife united with the other tenants in common of the property in a conveyance of the entire estate to the plaintiffs. About three years later the defendant, by let
“That in fact and truth the notes so made by said Pemberton, and indorsed by said Skidmore, had been before that time fully paid, and that the said mortgage was not a lien on the said land for any sum.”
Here was plainly but one representation of a matter of fact alleged to have been made, and charged to have been false, viz. that the notes in question were unpaid. The other representation charged, viz. that the mortgage was a lien for the amount of those notes, was the statement of a conclusion of law, dependent, apparently, upon the fact previously asserted,—that the notes were unpaid. But that fact was fully and concededly established by the evidence, and so it was found by the referee. Accordingly, the plaintiffs shifted their ground on the trial, and Willoughby was permitted to testify that the representation made by the officers of the defendant at the time the money was paid, and upon which he relied in making such payment, was not, as alleged in the complaint, that the notes were unpaid, but that they were given before the conveyance of the land by Pemberton and his cotenants to the plaintiffs. That representation, if it was made, was* contrary to the fact, as was plainly shown by a written statement of the notes, showing their several dates, and a computation of the interest on each note, which was given to Willoughby by the cashier in the same interview in which, as he testified, the representation was made to him that they were all given before the conveyance of the land to the plaintiffs. The dates shown by the written statement were from July, 1881, to May, 1882, while the conveyance was made in February, 1881. When the first question was
Judgment appealed from reversed, and a new trial granted, with costs to abide the event. All concur.