Wemple v. Hildreth

Van Brunt, P. J.

[After stating the facts as above.]—The complaint in this action proceeds upon the theory that by reason of the false representation of the defendant the plaintiffs were induced to extend the credit to the Urbana Wine Company for goods which had already been sold and delivered, as they allege, and that thereby they were damnified.

There is no intimation in the complaint that by reason of the representation they parted with any goods, or that they surrendered any lien which they had, or that they did anything beyond extending the credit which had already been given to the Urbana Wine Company. That such a condition of affairs will not sustain an action for fraud and deceit is established by the eases of Austin v. Barrows (41 Conn. 282), and Lamb v. Stone (11 Pick. 527).

In the first case the court lays down the rule that “ to maintain an action for the deceit or fraud of another it is indispensable that the plaintiff should show not only that he has sustained damage, and that the defendant has committed a fraud, but that the damage is the clear and necessary consequence of the fraud, and can be clearly defined and ascertained.” The language of the case of Lamb v. Stone is more significant and to the point. “ So far as the declaration shows, at the time when the acts were performed and the representations were made of which the plaintiffs complain, they had not obtained or taken any steps to obtain any lien upon the debtor’s property for the security of their debt by contract or negotiation with him; nor had they acquired any claim upon or interest in or right to any part of it by operation of law. They had taken no steps and formed no plan to procure a writ of attachment whereby to obtain security thereon, and no person had moved in the matter of a division of the property among the creditors by either bankrupt or insolvent laws. They therefore lost no lien of any kind in consequence of the acts and representations of the defendants.

“ The point of their complaint is this: they now think that if no representations had been made tó them they would have obtained a lien by attachment. They cannot make legal proof of this, and we cannot say that such an intent would have ripened into action—the property might have been destroyed before they could place a lien upon it. The debtors might Lave sold it to innocent purchasers and disposed of the proceeds in many lawful ways; their attachment might have been anticipated by others. The law does not undertake to grasp or measure such an uncertainty as the value of a mere possibility that a creditor may endeavor at some future time to obtain security from his debtor. . . . But, besides these practical inconveniences, which are of themselves insurmountable, there is another objection fatal to this present action. The injury complained of is too remote, indefinite and contingent. To maintain an action for the deceit or fraud of another it is indispensable that plaintiff should show not only that he has sustained damage, and that the defendant has committed a tort, but that the damage is the clear and necessary consequence of the tort, and that it can be clearly defined and ascertained. What damage has the plaintiff sustained by the transfer of his debtor’s property % He has lost no lien, for he had none. Ho attachment has been defeated, for none has been made. He has not lost the custody of his debtor’s body, for he had not arrested him. He has not been prevented from attaching the property or arresting the body of his debtor, for he never had procured any writ of attachment against him. He has lost no claim upon or interest in the property, for he never had acquired either. The most that can be said is that he intended to attach the property, and the wrongful act of the defendant has prevented him from executing this intention. Is this an injury for which an action will lie ?

How can the secret intentions of the party be proved ?

It may be he would have changed this intention. It may be the debtor would have made a bona fide sale of the property to some other person, or that another creditor would have attached it, or that the debtor would have died insolvent before the plaintiff would have executed his intention. It is, therefore, entirely uncertain whether the plaintiff would have secured or obtained payment of his debt, if the defendant never had interfered with the debtor or his property. Besides, his debt remains as valid as it ever was. He may yet obtain satisfaction from property of his debtor, or his debtor may return and pay him. On the whole, it does not appear that the tort of the defendant caused any damage to the plaintiff. But, even if so ; yet it is too remote, indefinite and contingent to be the ground of an action.”

The appellant, feeling the force of the decisions above stated, has urged that by the delivery of the goods the plaintiffs had given up their lien on the goods of the defendant; but it is to be observed in the first place that such is not the allegation in the complaint, and in the next place that the representation was not given for the purpose of inducing the plaintiffs to deliver these cards and give up any lien which they had upon them for the purchase price. No such conversation is testified to as between the plaintiffs and the defendant, and no such event seems to have been contemplated by the defendant at the time that he made the representation. There is certainly no evidence that his attention was called to the fact at the time of making this representation that the 26,000 cards were not delivered, nor is there any evidence that he made the representation for the purpose of inducing their delivery. It certainly was not the theory upon which the plaintiffs’ complaint was framed, and such complaint having been dismissed we cannot now engraft a new cause of- action which is not even borne out by the testimony.

The judgment appealed from must therefore be affirmed with costs.

VA$r Hoesen and Beach, JJ., concurred.

Judgment affirmed, with costs.