Jex v. Straus

Headnote

1. Torts—Damages nr action based on fraud.

The complaint in this action alleged that the defendants solicited from the plaintiffs a letter of introduction to the agent of the latter at Corn Island, under the Mosquito government, for a person, representing him to be a friend of theirs, unacquainted with Central America, and about to visit various places on the coast, on a pleasure trip, and that relying on these representations, the plaintiffs wrote and delivered to the defendants the letter requested. It was further alleged that these representations were false, that the party for whom the letter was procured was not a stranger to Central America, but visited there in conjunction with conspirators, preparing a hostile expedition against Spanish dependencies, and that the defendants were, privy to the expedition, and wrote the plaintiff’s agent requesting him among other things, to furnish supplies to a vessel engaged in the expedition; stating that they would honor the drafts of the captain • upon them, with which request they complied to an extent set forth in the complaint. It was also further alleged, that the party holding the letter of introduction, with others broke open the plaintiff’s building at Com Island, and made speeches, announcing their hostile intentions against the Spanish government: that the vessel in question was captured by the vessels of the United States Navy, subsequent to its departure from Corn Island, and the plaintiff’s premises and books subjected to a forcible examination by a United States naval commander, and that in consequence of this and other accompanying acts of the plaintiffs, were subjected to unjust suspicion injuring their business and credit to an extent stated. It was 'alleged that the hostile demonstrations set forth would not have occurred except the letter of introduction had been fraudulently procured as alleged. Held, that the only damage directly connected with the granting of the letter of introduction, was that incurred in furnishing supplies to the vessel.

3. Same—Action based on fraud—What facts do not constitute cause OF ACTION.

Held, that the acts of the bearer of the letter and his associates, constituted a trespass, but that the damages resulting therefrom and from the consequent examination by the naval officers, were too remotely connected with the granting of the letter to form grounds for an action against the defendants.

3. Same—When action is based on fraud recovery cannot be had for simple indebtedness.

Held, that the plaintiffs having failed to sustain their action on the ground of fraud, could not recover in this action on the indebtedness for the supplies furnished.

Appeal by plaintiffs from an order sustaining a demurrer to the complaint and from an interlocutory judgment entered thereon. The defendants demurred on the ground'

(with others) that the complaint did not state facts sufficient to constitute a cause of action.

The following opinion was written by the judge at special term in sustaining the demurrer.

O’Gorman, J.—This is a demurrer to the complaint on the grounds, 1st, that causes of action have been improperly joined; 2d, that the facts as stated in the complaint did not constitute a cause of action.

“The material facts as stated in the complaint and admitted by the demurrer are these: In December, 1885, the plaintiffs were merchants doing business in New York under the firm name of William Jex & Go., and the defendants also carried on business in New York under the firm name of A. D. Strauss & Go.

“'The plaintiffs have been engaged in trade between New York and British Honduras, the Mosquito coast and the Central American states, and had warehouses, stores, vessels and other property at Com Island, which is under the jurisdiction of the Mosquito government.

“ The agent of the plaintiffs at Corn Island was named Henry Nelson.

“ The defendants, being known to the plaintiffs as merchants for a number of years, requested plaintiffs to give them a letter introducing one Delgado to Nelson, the plaintiffs’ agent at Corn Island, and represented to the plaintiffs that he was their friend, unacquainted with Central America and about to visit various places on the coast on a pleasure trip. Belying on these statements the plaintiffs did write and deliver to the defendants a letter of introduction of Delgado to Nelson. These representations of defendants to plaintiffs were false. Delgado was not a stranger visiting Central America for the first time, but was there, in conjunction with one Soto and other conspirators, preparing a hostile expedition against the Spanish government ana Spanish Honduras, and defendants were privy to and aiding in this expedition by purchasing or chartering the steamship “City of Mexico” for the use of Soto and his confederates, and also supplying arms and ammunition for said ship.

“These facts the defendants concealed from the plaintiffs, and they falsely and fraudulently represented to the plaintiffs that the trip of Delgado was of an entirely private nature.

“The defendants on receiving from the plaintiffs this letter of introduction to Nelson in favor of Delgado, wrote a letter themselves to Nelson in which they stated that they had shipped goods to him, and requested him to hold the goods subject to the disposition of Delgado, and re

quested him (Nelson) to carry out the instructions of Delgado as to re-shipment of these goods per the “ City of Mexico ” And they also requested Nelson to furnish supplies to the “ City of Mexico,” and they promised that they would honor the drafts of the captain of the ship on them, the defendants, in "New York.

“About December 31, 1885, the ‘City of Mexico’ arrived at Com Island from New York with Delgado on board, but without any goods or freight on board, the shipping of the goods, which were in fact arms and ammunition, having been prevented by the customs authorities at the port of New York.

“The arms and ammunition, notwithstanding various plans and efforts on the part of the conspirators, never did reach Corn Island, but were finally captured by the officers of the British navy in Kingston, Jamaica, and all that Nelson, the plaintiffs’ agent, did in consequence of the letters presented to him by Delgado—that is to say, the letter from plaintiffs, introducing Delgado, and also the letter from the defendants to him, Nelson—was to supply provisions for the steamship and make certain advances, for which the defendants are still indebted to the plaintiffs in about $300.

“Nelson, the plaintiffs’ agent, never by any act gave encouragement or aid to the projected hostile expedition— he refused to give Delgado the use of one of plaintiffs’ schooners, and the correspondence which took place between him and the defendants was without the knowledge of the plaintiffs and was in itself harmless and blameless.

“ Delgado, however, and the captain of the ‘ City of Mexico,’ and some of the partially armed crew forcibly entered plaintiffs’ buildings at Com Island, and held meetings and made public speeches there, announcing their intention to carry on hostilities against Spanish Honduras, and plaintiffs aver in their complaint that but for the letter of introduction procured for Delgado from the plaintiffs, none of such persons would have been allowed peaceably to land or visit the premises of the plaintiffs.

“ The plans of Delgado to cause the delivery of the goods in Corn Island having wholly failed, he departed from Corn Island in the steamship ‘ City of Mexico,’ which was subsequently captured by vessels of the United States navy.

“ Shortly after her departure, vessels of the United States navy arrived at Corn Island, and the commander of one of them suspecting that Nelson had some connection or complicity with the illegal expedition of Delgado, entered the plaintiffs’ premises at Com Island by force and without permission of plaintiffs and made search therein and examined their books, etc., there, and took temporary possession of one of their schooners there, subjecting them to unjust and unfounded suspicion and greatly injuring their credit and business.

“ Soon afterwards, however, becoming satisfied of the innocence of the plaintiffs, the said commander released the schooner and withdrew from Corn Island.

“ The plaintiffs claim that by reason of the wanton fraud perpetrated on them by defendants in procuring the letter of introduction and the reckless, wanton and wicked acts of the defendants, plaintiffs have been injured and damaged in the sum of $10,000.

“The question first to be considered is whether, admitting, as this demurrer does, admit, all the facts above stated, any cause of action is made out against the defendants. 1

“The wrongful act of the defendants, from which all the alleged injuries and damages are claimed to have been consequences, was the procuring from the plaintiffs the letter of introduction of Delgado to Nelson by means of fraudulent concealment of the truth and fraudulent representation of what was false.

“ Is there any real connection between that act of the defendants, however blamable, and any injury, real or supposed, incurred by the plaintiffs?

“ The only injuries incurred by the plaintiffs which can be imputed as the direct consequence or result of that letter are the making by Nelson of advances on the account of the_ defendants to the amount of $300, for the recovery of which sum an action would lie against the defendants.

“ It may be argued that but for the influence of that letter of introduction to Nelson the advances would not have been made. Yet there is nothing to show that such advances were directed or allowed, or referred to in that letter, or that there was anything in that letter to warrant Nelson as agent of the plaintiffs in having any business dealings or transactions with Delgado or with the defendants. The complaint is silent on that subject.

“As to the forcible occupation of the premises of the plaintiffs by Delgado and the crew of the steamship, it was a trespass and a wrong, wholly unwarrantable, which cannot be regarded as the natural or approximate consequence or result of that letter. As well might a burglary, committed by Delgado and the others, be claimed to have been a consequence.

“Neither can the forcible occupation of the plaintiffs’ premises, or the temporary possession of plaintiffs’ schooner by the commander of a United States man-of-war be regarded as a legitimate consequence of that letter. After all that appears, that was also a trespass and a wrong, without fraud or justification of any law, and for any damages incurred by the plaintiffs which could be legitimately traced to that wrong, legal remedy by way of action for damages would no doubt exist. The damages alleged to have been incurred by the plaintiffs by these acts of United States

naval_ officers are, in my opinion, too remote and inconsequential and unconnected with their alleged origin and cause—the obtaining of the letter of introduction—to form the grounds of an action.

“The plaintiffs failing to sustain their action on the ground of fraud cannot recover in this action the three hundred dollars due them by defendants as an ordinary indebtedness, depending on the breach of an ordinary implied contract or actual promise to pay.

“In considering this case, I have not failed to avail myself of the able briefs submitted to me by the learned counsel on both sides.

“ The facts, as they now stand admitted by demurrer, are such as might create, in the minds of the plaintiffs, a not unnatural sense of wz*ong inflicted on them. But the law is, and of necessity must be, at its best, incomplete and imperfect, and unable to cope with all complicated and minute offenses which occur from time to time in the dealings between man and man. With all its scrutiny, some will still elude its grasp from the impossibility of fixing the responsibility with that reasonable certainty which the law properly requires.

“After giving this case careful attention, I have come to the conclusion that the demurrer must be sustained, with costs,”