Robert v. Finberg

The transaction which led to this (No. 412) and the companion action (No. 413) is the story of a fraudulent conspiracy, successfully consummated, by which shrewd and experienced men played upon the credulity and ignorance of a callow young man, and stripped him of a considerable part of the little inheritance left him by his father. The record is an indubitable demonstration of the fraud. Judicial uncovering of the fraud makes redress imperative.

In a case of this character it is especially true, that no errors in the trial, except those involving some substantial injustice to an appellant and making it doubtful whether the law has been administered to him with impartiality, should stay its sentence.

The defendants assert that the fraudulent representations of the complaint, except as to the single item of value, are not found in the proof, and that the judgment must follow the facts of the complaint. This is the law. The complaint must set forth the facts from which the fraud is inferred, and the judgment follows these. Gates v. Steele, 58 Conn. 316, 318, 20 A. 474;Bradley v. Reynolds, 61 Conn. 271, 279, 23 A. 928.

The finding does present a series of representations in addition to those alleged; as to these recovery could not be had in this action. But the finding also presents fraudulent representations which appear in the complaint other than those relating to value. Among these are those relating to the acres of woodland and of tillable land, to the presence on the farm of a brook and pond, of deer and game, and of granite. All of these representations, as well as those relating to value, the court finds were calculated to deceive, and did deceive, the plaintiff. Fraudulent representations, quite apart from those as to value, amply sufficient to support the judgment, were thus alleged and proved.

The defendants object to the admission of fraudulent representations other than those alleged. In the proof of such a fraud all of the circumstances of the transactions, and all of the representations made, necessarily became a part of the evidence. They tended to prove the representations relied on, and they tended to prove their character, and also the purpose of their making.

Every incident of a fraudulent transaction is admissible, whenever any part of that transaction is called in question in judicial proceeding. The point was settled adversely to the defendants in Shelton v. Healy,74 Conn. 265, 270, 50 A. 742, where we said: "Representations differing from but tending to prove those alleged, may be shown, and to enable the court or jury to understand the meaning of the statements made by the defendant, and relied upon as proving the alleged representations, the plaintiff may often properly be permitted to prove the entire conversation in which statements occur, even though representations materially different from those alleged are thereby shown."

We cannot agree with the defendants that, under the circumstances of this case, misrepresentations as to value could not support such an action as this. A representation that a farm is worth $25,000, when it is worth $5,000, made as part of a fraudulent scheme to sell the property, made by men with full knowledge of its falsity, to an inexperienced young man who neither knew nor had the means of knowing that the statement was false, is such a fraudulent representation as will support an action either for the fraud or to rescind.

Representations as to value are ordinarily matters of opinion, and not actionable. We pointed out several exceptions to this general rule in Gustafson v. Rustemeyer,70 Conn. 125, 39 A. 104; and Shelton v. Healy,74 Conn. 265, 50 A. 742, furnishes another exception, where the representation of value was held to be a fact instead of an opinion. This rule of law is not unbending. Exceptions to it will multiply as fast as the prevention of fraud requires. A single representation as to value in a plaint and aggravated case of cheating will suffice to hold a vendor. 20 Cyc. 51. That the plaintiff knew the defendants had only paid $11,000 for the farm did not, as a matter of law, prevent a finding that the plaintiff relied upon the representation as to value. Nor can it be said as matter of law, under the facts of this case, that the plaintiff had no right to rely upon the representations made. The trial court has found that the plaintiff did rely on them, and its finding is conclusive.

We agree with the defendants that the representations as to the lease with Hettesheimer was not, on the facts stated, fraudulent. Had this been the only representation upon which the court's action was taken, we should have reached another conclusion; since it was one of a number, it is unimportant whether or not the court incorrectly relied upon this.

The defendants urge that the plaintiff, after ascertaining that he had been deceived, did not act with sufficient promptness in seeking his relief. Some features of the finding give considerable countenance to this claim. Usually such a question, especially in an action of fraud, is one of fact; and when there is no finding that the delay was unreasonable, we cannot, on appeal, ordinarily so hold as matter of law. Fox v. Tabel, 66 Conn. 397, 400,34 A. 101. In this case the court has not found the delay was unreasonable; it has by its judgment found otherwise. Nor are the facts so exceptional as to fall outside this general rule. If the case were one where the conclusion, that the delay in bringing the action was unreasonable, should be held to be erroneous, the defendants would have been prevented from making this claim by their failure to raise the question in the pleadings or on the trial.

The defendants insist that the plaintiff has in the relief sought elected to sue for a rescission rather than for damages. Looking at the record, and at the prayers for relief of Robert in each case, we concur in this view. And it is apparent that the trial court disposed of these cases on this theory, and that this was, under the pleadings, the only course open.

One of the assignments of error presents the question whether the judgment was erroneous in not providing for a reconveyance of the farm by the plaintiff. As the judgments stand, Robert recovers his $5,000 and the Brooklyn real estate he parted with, and is released from the obligation of the mortgage of $7,500 given by him, and retains title to the farm, valued by the court at $5,000. The plaintiff receives what he parted with and retains what he obtained on the sale. The judgments were doubtless so framed through inadvertence. The plaintiff, upon rescission, was entitled to restoration, and no more. 2 Pomeroy on Eq. Juris. (3d Ed.) § 910. Gustafson v. Rustemeyer, 70 Conn. 125,39 A. 104. The motion to correct is without merit.

The judgment should be modified to read as follows: Whereupon it is adjudged that the note and mortgage as described in the complaint be decreed void; that the defendants convey to the plaintiff the said equity in the real estate described in paragraph eight of the complaint by a sufficient deed if within their power, or pay the plaintiff $1,800, with interest from January 28th, 1909, and that the defendants pay the plaintiff $5,000 upon being tendered by the plaintiff a quitclaim deed of the farm, described in paragraph five of the complaint, free from encumbrances placed thereon by the plaintiff; and that the plaintiff recover his costs taxed at

There is error in part, the judgment is set aside, and the cause remanded with direction to the Superior Court to render judgment in accordance with this opinion.

In this opinion the other judges concurred.