Jex v. Straus — 33 N.Y. St. Rep. 448

Majority

p. 448

William Jex et al., App’lts, v. Adolph D. Straus et al., Resp’ts.^[1]

(Court of Appeals, Second Division,

Filed October 7, 1890.)

Headnote

Fbaud—What pacts will not constitute

Plaintiffs’ complaint alleged that defendants applied to them for a letter introducing one Delgado, whom they falsely represented to he an ordinary traveler, about to visit Central America, to the agent of plaintiffs at Corn Island, under the Mosquito government; that they, ignorant of the facts, gave the letter; that Delgado was, in fact, a conspirator against the Spanish dependencies; that defendants wore privy to the expedition, and wrote plaintiffs’ agent to furnish supplies to a vessel engaged in the expedition, stating that they would honor the drafts of the captain upon them, which the agent did to the extent of $300; that Delgado, the captain and others, broke open and entered plaintiffs’ buildings at Corn Island, held meetings there, and made speeches, announcing their hostile intentions against the Spanish government; that the vessel was captured by the United States navy, and condemned, and plaintiffs’ premises and schooner were taken possession of by the United States commander, subjecting them to unjust suspicion, and greatly injuring their credit; that the injuries were caused solely by the fraudulent statements and acts of defendants, and claiming $10,000 damages. Held, that there was no relation of cause and effect between the letter and the acts resulting in loss, and that the complaint did not set forth a cause of action.

p. 449

Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment of the special term which sustained a demurrer to the complaint

The substance of the complaint is that the plaintiffs for some years prior to June 30, 1886, were engaged in trade between the city of New York and the Central American States, and owned various warehouses and other property at Corn Island within the jurisdiction of the Mosquito Government, at which point one Nelson was their agent. December 14, 1885, the defendants, who were then merchants in the city of New York, applied to plaintiffs for a letter to their said agent introducing one Emilio Delgado. 'They represented to the plaintiffs that said Delgado was a friend, unacquainted with Central America, who was about to visit different places in Nicaragua on a pleasure trip, and desired the letter to aid him in obtaining information about the people and country. Belying on these representations and having no suspicion of the real character or purpose of Delgado, the plaintiffs gave them a letter introducing him to said Nelson. The defendants, however, knew at the tithe that said Delgado was not a stranger visiting the country for the first time, and that he was an intimate friend and associate of Marco Aurelio Soto, ex-president of Spanish Honduras, who was then organizing a hostile and revolutionary expedition against that government. The defendants also concealed from the plaintiffs the fact that they had chartered a vessel, known as the “ City of Mexico,” for the use of said Soto and Delgado, and that they had purchased arms and ammunition for them in their revolutionary designs, well knowing that the plaintiffs would have refused to give said letter if they had known of the defendants’ purpose in obtaining it. The defendants, without the knowledge or authority of the plaintiffs, also wrote a letter to said Nelson •stating that they had instructed their agents at Kingston, Jamaica, to ship some goods to him and requesting him to hold them subject to the disposition 'of said Delgado and to carry out all his instructions as to the re-shipment of the same per the “City of Mexico” or otherwise.

The defendants further stated in their letter to Nelson that they desired him to furnish provisions and supplies to said vessel and that they would honor the drafts which they had authorized her captain to draw upon them for all of her expenses. They delivered both of the letters to Delgado, who sailed from New York on the “City of Mexico,” December 31, 1885. Some time before, the defendants, acting as the agents of Soto and Delgado, and knowing the unlawful character of their enterprise, had purchased an armament for said vessel and had attempted to ship the same thereon, but were prevented by the vigilance of the custom house authorities at New York. Thereupon they shipped the arms to Kingston for transhipment on their arrival at that port to Corn Island, where they were to be put on board the “City of Mexico.” They intended to employ the plaintiffs and their agent Nelson in the execution of this plan and for that purpose procured the letter' of introduction and wrote to Nelson as aforesaid. On the arrival

p. 450

of Delgado at Com Island, January 22, 1886,' lie presented both of the letters to Nelson and subsequently the captain of saicl vessel, “by concealing her true character or by threats of fraud," procured from him, for her use, certain moneys and supplies belonging to the plaintiffs of the value of $300, no part of which has been paid. Mr. Nelson was not authorized to furnish supplies or money “to any such vessel,” and the same “were procured * * * through fraud.” He had no knowledge of the contemplated expedition until after the arrival of Delgado at Corn Island, and “ at no time did he participate therein or lend any aid thereto.” While the “City of Mexico” remained at Corn Island awaiting the arrival of the arms from Jamaica, the said Delgado- and the captain and others from the crew and partially armed force on board said vessel, “ unlawfully and improperly entered ¡Jain tiffs’ buildings and property, held meetings and made public speeches in which said Delgado and others announced their intention of proceeding with said steamship to land an armed force-upon the soil of Spanish Honduras, in order to overthrow her government.”

The arms, however, did not reach Nelson, as upon their arrival at Kingston they were shipped back to New York by the British authorities at that place. Thereupon about January 20, 1886, the defendants caused them to be again shipped from New York upon the steamer “From ” to be delivered by her to the “ City of Mexico,” and, without the knowledge of the plaintiffs, wrote Nelson to that effect and that the goods would be consigned to him and requesting him to reship them on the “ City of Mexico.”

In the meantime, Delgado had applied to Nelson for a schooner of the plaintiffs so as to send to Kingston for the arms, but his request was refused, and upon learning that the arms were not at. Kingston, he sailed to San Andreas Island with the “ City of Mexico,” which soon after was captured by the United States Navy and condemned by the United States Admiralty court to be sold for violating the neutrality statutes. U. S. R. S., §§ 5281-5291.

Shortly after the departure of the “ City of Mexico ” from Corn Island two ships, of war of the United States arrived at that place and the commander, on learning that Delgado brought letters, from New York to Nelson, and that the arms were to have been shipped from Kingston consigned to him, assumed that the plaintiffs or their agent had some connection with the illegal expedition, and forcibly entered upon plaintiffs’ premises, searched them and took temporary possession of the schooner “Transport,” belonging to them, and thereby interrupted their business, subjected them to unjust suspicions and greatly injured their credit. Upon becoming satisfied of their innocence, however, the commander-released their vessel and property and withdrew from Corn Island. The plaintiffs further allege that the injuries to which they were-thus subjected were caused solely by the fraudulent statements and acts of the defendants; that they were ignorant of the facts at the time they gave the letter of introduction and that by reason of the premises they have sustained damages to the amount of $10,000!

p. 451

The defendants demurred to the complaint upon the ground "that it does not state facts sufficient to constitute a cause of action ¡and because pretended causes of action are improperly joined therein, in that an alleged cause of action for fraud and false representations is joined with an alleged cause of action for trespass to real property.

J. Hampden Dougherty, for app’lts; W. W. MacFarland, for resp’ts.

According to the complaint, such pecuniary dam.ages as were sustained by the plaintiffs were caused by the following acts only, to wit: 1. The captain of the City of Mexico, “ by concealment of her true character, or by threats or fraud,” procured from the agent of the plaintiffs certain money and supplies belonging to them, for which they have not been paid. 2. General Delgado landed at Corn Island from said vessel with certain of his followers and “unlawfully and improperly entered plaintiffs’ buildings and property,” where they held meetings and made speeches, announcing their intention of overthrowing by armed force a government friendly to the United States. 3. A naval officer of the United States, unjustly suspecting that the plaintiffs were lending aid to the violation of our neutrality laws, .forcibly entered upon their premises, seized one of their schooners, interrupted their business and thus injured their credit.

Unless the defendants are legally responsible for one or more cf these acts, it is obvious that the complaint sets forth no cause of .action against them. It is not alleged that they ever authorized, promoted or even contemplated any of said acts, or that they, either directly or indirectly, ratified or approved of them. They engaged as merchants in aiding General Delgado in organizing his expedition by purchasing and transporting arms and munitions of war for him, but they did not authorize the captain of the “City of Mexico ” to make threats or practice fraud in order to procure supplies for that vessel nor instigate the trespass committed upon private property. It is true that they requested the agent of the plaintiffs to sell supplies to the vessel and agreed to honor the drafts drawn in payment. If the action were on contract there might be a recovery for the amount contracted for, but it proceeds in tort and seeks to recover for fraud and unlawful violence. ■Certain representations of the defendants to the plaintiffs, made with knowledge of, but without disclosing certain facts, are all •that the complaint has to rest upon, and unless it shows a logical connection between those representations and the acts that resulted in pecuniary loss, there is no cause of action alleged. "What were the representations? The defendants, knowing and concealing the hostile .purpose of General Delgado, falsely represented him as an ordinary traveler about to visit Central America and desiring a letter of introduction to the agent of the plaintiffs, to aid him in getting information about the people and the country.

The letter was- thus procured and the force of the representations ended in the letter, which thenceforward was the only link

p. 452

connecting the representations with the acts resulting in injury to. the plaintiffs. The contents of the letter are not set forth, but as it is characterized as a letter of introduction, presumptively it simply made Gen. Delgardo acquainted with Mr. ¡Nelson, without accrediting or recommending him. What connection could such a letter have with the subsequent acts of the captain of the steamship in procuring supplies by threats and fraud, or of Gen.Delgado in trespassing upon the property of the plaintiffs, or with the unwarranted proceedings of the naval officer ? Clearly there was no relation of cause and effect between the letter and the acts resulting in loss, yet unless the damages sought to be recovered are “ the legal and natural consequence of the wrong complained of, proceeding ex-clusivelyfrom that and not from the improper act of a third party induced thereby,” there can be no recovery. Crain v. Petrie, 6 Hill, 522 .

The law requires that the injury must proceed so directly from the wrongful act that, according to common experience and the usual course of events, it might, under the particular circumstances, have reasonably been expected. Sutherland on Damages, vol. 1, p. 21; Sedgwick Meas. Dam., vol. 1, p. 90; Greenleaf’s Evidence, vol. 2, § 256; Addison on Toils, vol. 1, p. 6 ; Ryan v. N. Y. C. R. R. Co., 35 N. Y., 210 ; Knight v. Wilcox, 14 id., 413, 416 ; Hutchins v. Hutchins, 7 Hill, 104 ; Lynch v. Knight, 9 H. L.. Cases, 577.

To justify the recovery of damages, they must be the natural and proximate consequence of the act complained of. Id. These principles are elementary, and when applied to the facts of this case show that, however reprehensible in morals the conduct of the defendant may have been, it afforded the plaintiff no basis for legal redress.

The letters written by the defendants to Mr. Nelson contained no representation, and even when considered in connection with the letter of introduction, add nothing to its force and lend no strength to the plaintiff’s case.

We think that the complaint fails to set forth a cause of action against the defendants, and that the demurrer was properly sustained by the courts below.

The judgment should be affirmed with leave to the plaintiffs to. amend, upon payment of costs.

All concur.