Amory v. Nason

The complaint alleges: That the defendant was employed and acted as attorney and counsel in certain proceedings to foreclose and sell the property and franchises of the Jerome Park Railroad Company, and was likewise agent and acted as attorney for the owners of a large majority of stock and bonds of the company in obtaining a purchaser therefor at private sale. That, as such attorney and agent, he entered into an agreement with the plaintiff, whereby the defendant agreed to sell and deliver to the plaintiff at his option the stock and bonds of said railroad at an agreed price of $25,000, at which price the defendant stated that he was authorized to sell such stocks and bonds; and further agreed that, if this plaintiff produced a purchaser other than plaintiff ready and willing to buy at a price in excess of $25,000, he was authorized and would sell and delivér said stocks and bonds to such purchaser and allow and pay to plaintiff, as his profit and compensation, any sum realized in excess of such selling price of $25,000. That thereupon the plaintiff devoted his time and efforts to sell such property, and produced a purchaser ready and willing to buy said stocks and bonds and pay therefor the sum of $55,000, and at the same time plaintiff disclosed to defendant the name of said purchaser and the amount to be paid, and demanded of defendant that he fulfill his agreement as aforesaid and deliver said stocks and bonds to such purchaser, and to pay plaintiff the profit and compensation of $30,000, as agreed, and to which this plaintiff thereby became entitled. That thereafter, with intent to defraud and deceive this plaintiff into consenting to share such profits, the defendant falsely and fraudulently stated and represented to this plaintiff that he had explained the situation fully to his clients and principals, had returned all fees received from them, and had waived and refused the sum of $1,000, and all other future fee or compensation from such clients and the principals, and had severed and terminated all relations either of attorney or agent, with the owners of such stocks or bonds, and was in a position to co-operate with this plaintiff and act as his attorney, in carrying through such transaction, and could act in good faith and free from any duty, influence, or interest adverse to his duty to, and the interests of, this plaintiff. That the owners of said stocks and bonds had stated and assured defendant that they would sell said stocks and bonds to this plaintiff, or any other purchaser procured by him, on substantially the terms originally agreed on, and-allow him to retain his profits, if this plaintiff would share said profits with the defendant; but his clients and principals had further stated that they would otherwise refuse to do so, and no sale would or could be effected, except through co-operation and with the assistance of the defendant. That plaintiff believed said representations to be true, and relied thereon, and was thereby induced to and did agree with the defendant to retain him as agent and attorney, and did retain the defendant as his agent and attorney to act for plaintiff in carrying on said negotiations, and allowed him to transact such business in defendant’s name and retain as his compensation the sum so demanded by him, amounting as a total to the

The argument of the respondent is that the complaint sets up a complete cause of action to recover by a broker an agreed upon compensation for producing a purchaser ready, willing, and able to perform upon the terms propounded by the seller; that, having so performed the agreement upon his part, the obligation of the seller became fixed, and the broker was entitled to his compensation, and the courts were open to him to enforce the said agreement; that, if thereafter he chose to divide the fees which he had earned with the defendant, it was a voluntary and gratuitous payment upon his part; and that he has no standing in court to recover back from the defendant the amount so voluntarily paid to him. He cites as his main reliance Doyle v. Rector, etc., of Trinity Church, 133 N. Y. 372 , 31 N. E. 221 . That case, as I read it, does not bear upon the controversy here presented. No question of good faith or deceit or fraud was there involved. In that case, the court held that plaintiff’s assignor, after full performance of his contract, having with full knowledge of the facts voluntarily performed certain other work without any promise on defendant’s part to pay therefor, he could not recover. “By acquiescing in these terms and voluntarily doing the work he must be held in law to have agreed to give his work to the defendant.” “If one agrees to work for another for nothing, he may afterward refuse to work; but if he voluntarily performs his promise and does the work, he cannot afterward compel payment for it.”

The facts in the case at bar are entirely different. This is not an action against the sellers of the property for the amount of the broker’s commission where with full knowledge of all the facts the plaintiff had subsequently made an agreement to satisfy his claim upon receipt of one-half thereof. It is a claim against the attorney and agent of

In 14 Am. & Eng. Enc. 143, it is said:

“The fact that the action of a person to whom false and fraudulent representations are made proceeds from benevolence, and not from self-interest, does not prevent him from maintaining an action for deceit provided the false representations induced him to act. Buck v. Leach, 69 Me. 484 , and see Wessels v. Carr, 15 App. Div. 360 , 44 N. Y. Supp. 114 .”

In the latter case a complaint had been demurred to which alleged that the plaintiff recovered a judgment against the defendant for $1,237.49 which was still' unpaid and unsatisfied. On plaintiff endeavoring to collect said judgment, the defendant willfully, intentionally, and falsely represented that he. was a poor man and could not pay a dollar of his debts, but that if plaintiff would accept $250 in, full settlement of said judgment, and give defendant a release from ail obligation under the said judgment, he would procure a party to take an assignment of said judgment for the said sum; that, relying upon the statement of the defendant in regard to his inability to pay the said judgment, the plaintiff accepted the defendant’s offer, gave the defendant a release, and made an assignment of the said judgment to one Mangels; that'the $250 was paid, not by Mangels, but by the defendant; that the assignment to Mangels was intended to deceive plaintiff into believing that the defendant was a poor man and unable, to pay the judgment, and the assignment was for the benefit of the defendant; that the representation of defendant in regard to his inability to pay said judgment was false and made with the intention of deceiving and-defrauding the plaintiff; that, in fact, the defendant was-a man of means and able to pay the said judgment in full; and that by reason of the premises the plaintiff has suffered damage in the sum of $1,500. O’Brien, J., said:

“The essential constituents of an action for fraud are representations of falsity, scienter, deception, and injury. The complaint contains .all these elements. The only question that can arise is whether the character of the representations, if proved, is of a sufficiently grave nature to entitle the plaintiff to relief. In other words, will a false and fraudulent representation, made with intent to induce a compromise, that one is poor and unable- to pay

■Ms debts, when in fact he is able, justify an action for damages? Of course, if the fraud is sufficiently grave, the release and assignment present no insuperable barrier to a recovery. * * * If such representations were, as alleged, false and untrue and fraudulently made, we think they are sufficient”

“Freedom of will and good faith are essential to" the validity of a gift as in the case of contracts generally. Where the donor has been induced to make a gift through force, fraud, or undue influence, the gift may be set aside.” 14 Am. & Eng. Ene. 1011.

“The rule is well recognized that a gift procured through" means of fraud, duress, or undue influence brought to bear upon .the donor is void.” 20 Cyc. 1217.

The complaint states facts sufficient to constitute a cause of action. It follows therefore that the judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.