Dung v. Parker , 3 Daly 89 ( 1869 )

By the Court.

Brady, J.

The plaintiff by this action sought to recover from the defendant the damages which he had sustained in consequence of the unwarranted assumption of authority or agency by the latter, resulting in an absdlute promise on his part to give a lease to the plaintiff of the drug store, at the northeast corner of Twenty-third street and the Fourth avenue, for a 'period of not less than two years, and upon which promise the plaintiff relied and acted to his pecuniary injury. Upon the evidence relating to this charge, and which was conflicting in its character,- the jury have found in favor of the plaintiff. The presiding Judge, in charging them and in submitting to them the question, gave to the defendant all the legal advantages to which he was entitled. He said, “ But if you believe that the assertions were made as the plaintiff claims, then other questions arise: 1st. Did the plaintiff know that] the statements which he says were made by Dr. Parker as to his authority or the implied representations from the promise of a lease (if you find that to be the fact in that respect), knew they were false when made or before he acted upon them ? If he did, he cannot recover, because to entitle him to recover he must satisfy you—

1. That the statements were made.

2. That they were false, which is not disputed, if they were made.

3. That he acted upon them, believing them to be true.

4. That he has thereby sustained damage. The jury thus instructed, having, as already stated, found in favor of the plaintiff, and by that finding established the charge of the plaintiff against the defendant of the fraudulent assumption of authority upon which he relied and acted to his injury, is there any element developed by the evidence or arising from the circumstances surrounding and relating to that issue, which relieves the defendant from liability. We are advised of this fact only—that the promise was by parol of a lease for more than one year, and was void under the statute of frauds, and it must be assumed that such is the fact, inasmuch as the correspondence between the parties does not in itself, unaided by parol evidence, show that the defendant made the absolute individual representation and promise on which the plaintiff relies, and upon which his action is based. Is this sufficient to defeat the plaintiff’s claim ? The statute of frauds in reference to contracts for land was intended to apply to transactions between parties having the right or power to make the necessary agreement. It pre-supposes such right or power, and also that but for its provisions a verbal contract relating to the subjects embraced within it would be effective in its operation upon the contracting parties. It was not designed for, and has no application to any contracting party who assumes to have but has not the right to contract in reference to land—to one who is not only destitute of title in, but has no representative individual power to contract in reference to the land designated. It was created for the protection of persons whose relations to each other in reference to the subject-matter of their barter were prima, facie fair and honorable. It was not passed for the safety of wrong-doers or as a shield against their transgressions. The defendant in this case, therefore, cannot avail himself of its saving clauses. It iu no way enures to his benefit. He had no authority to contract as he assumed to do, and if the statute were not jin existence he could not perform his engagement. He undertook to do what it was impossible for him to. perform, and he knew it. We must assume this to be so upon the finding of the jury. He is not prosecuted for omitting to give the lease which he verbally promised to execute. His lia- ’ bility is not urged upon that ground. He is charged with fraud, which consists in falsely representing' that he had the power to give a lease, and promising to do so when he possessed no such power, and knew that he did not. It is not necessary, therefore, to inquire whether there exists in this case facts and circumstances which, if he had had the power to give a lease, a court of equity would have compelled him to do so, which would otherwise be necessary. It is enough to create a right of action that the plaintiff, relying upon the defendant’s representations and promise, wrongfully made, and upon which he had a right to rely, incurred expenses and losses. It is not to be questioned, that an action may be maintained for an unwarranted assumption of agency which results to the prejudice of another (Rickard v. Stanton, 16 Wend. 25; Benton v. Pratt,. 2 Wend. 385; White v. Madison, 26 N. Y. 117). Having arrived at these conclusions, it follows that, unless some error was committed upon the trial for which the cause should be sent back, the judgment must be affirmed. The duty of affirmance is placed upon the wrong committed by the defendant in falsely assuming to possess the power of an agent, and the legal fraud resulting therefrom, and not upon either .the sufficiency of the defendant’s promise in writing or the existence of elements constituting a contract, which, assuming-it to be in parol, a court of equity would, nevertheless, enforce, if the defendant had the power to perform. The first exception to which our attention was called, was the admission of evidence, in respect to orders and expenditures which the plaintiff had given, and made, but for which no relief was sought against the defendant. Such evidence was properly a part of the res gestee. It tended to show that the plaintiff relied and acted upon the defendant’s representations and promise. The refusal to charge as desired in regard to the alleged opinion of the defendant in reference to Mr. Van Wyck’s lease was proper. The defendant’s liability was not predicated of that opinion, which the form of the request assumed. The refusal to charge the measure of damages was correct. This is not an action to recover for a refusal to deliver possession of the premises, and the damages are those which were the natural and necessary-consequence of the wrong done (White v. Madison, supra; Passenger v. Thorburn, 34 N. Y. 634). The remaining exception relates to the items of storage on the bill which was presented to the plaintiff, the greater part of which was paid by him, «by Maurer & Yogel, whom he employed to make the fixtures for the store, and for loss of time in and about the preparation which the plaintiff was making to take possession of the premises, of which he was to have the lease. These fixtures were designed to make the store first class, and that determination met with the encouragement of the defendant who had not been entirely satisfied with the character of the then existing establishment. The amount which should be allowed the plaintiff for such loss of time was found by the jury to be $53.33. The evidence as to the storage and insurance was received and admitted without objection, and the bill of Maurer & Yogel, containing these items, was used and commented upon in their addresses to the jury by the counsel for both parties without objection from either. It was not until the conclusion of the charge of the presiding Judge that the defendant’s counsel took exception to the consideration of those items, the Judge having advised the jury that they were properly allowable. It is questionable whether, when a party permits evidence to be given upon the subject of damages, and comments upon it without objecting to its admissibility, he can avail himself of an exception in regard to it, the trial having been concluded, upon the ground that the items are too remote. It is not necessary, however, to apply the rule that such a course should not be countenanced. The storage and insurance were precautions which enured to the benefit as. well of the defendant as the plaintiff, and if necessarily incurred and legitimate charges against the plaintiff, should be allowed. No question of their validity was raised upon the trial. They were immediately identified with the principal pecuniary loss of the plaintiff, and are not more remote than the costs and expenses attendant upon an action to enforce an unwarranted contract by an assumed agent, which was allowed in the case of White v. Madison (sivpra). The allowance for loss of time was, however, too remote, and should be deducted. The plaintiff consenting thereto, the judgment herein will be affirmed for the balance. These exceptions embrace all that are presented upon the defendant’s points, and the conclusions arrived at cover the whole of the defendant’s case as it appears to us.