Eames v. Brunswick Construction Co. — 94 N.Y.S. 24

Majority

p. 24

( 104 App. Div. 566 .)

EAMES v. BRUNSWICK CONST. CO.

(Supreme Court, Appellate Division, First Department.

May 5, 1905.)

Headnote

Stock Subscriptions—Action Against Solicitor.

A subscriber to stock may not sue the soliciting agent for falsely informing plaintiff that his subscription was being canceled, save in an action at law for damages, and where plaintiff believed it, and in reliance upon it did or refrained from doing something, causing damage.

Appeal from Special Term, New York County.

Action by Stewart W. Eames against the Brunswick Construction Company. From a judgment for defendant plaintiff appeals.

Affirmed.

The following is the opinion of the court below (Scott, J.):

The complaint certainly states no cause of action against the demurring defendants. They acted, as it is alleged, solely as agents of the defendant, Brunswick Construction Company, .to solicit subscriptions to the syndicate agreement. Whatever duty they owed was to their principals, and if it was a part of that duty to communicate plaintiff’s withdrawal from the agreement their failure to do so was a breach of duty to their principals, and. not to this plaintiff. It is not necessary to consider here whether no

p. 25

tice of withdrawal to the agent employed to solicit subscriptions was equivalent to notice to the principal, or whether, assuming such notice to have been sufficient, and to constitute a complete defense to any attempt to collect the subscription, an affirmative action in equity will lie to cancel the agreement. The demurring defendants may be necessary witnesses in any action relating to plaintiff’s liability as a subscriber; but this does not justify joining them as defendants. If any cause of action could be based upon the action of the demurring defendants in informing plaintiff that his subscription was in process of cancellation, it would be only an action at law for damages; and no such action would lie, if at all, unless it appeared that the statement was false, that plaintiff believed it, and in reliance upon it did or refrained from doing something, and that he thereby suffered damage. None of these allegations are to be found in the complaint. The demurrer must be sustained, with costs.

Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, PATTERSON, O’BRIEN, INGRAHAM, and LAUGH-LTN, JJ.

F. P. Campbell, for appellant.

J. E. Lawshe, for respondent.

Judgment affirmed, with costs, on the opinion of the court below, with leave to the plaintiff to amend on payment of costs in this court and in the court below.