Winchell v. Knickerbocker Ice Co. — 36 N.Y. St. Rep. 730

Majority

p. 730

Benjamin Winchell, App’lt, v. The Knickerbocker Ice Co., Resp’t.

(New York Common Pleas, General Term,

Filed February 2, 1891.)

Headnote

Release—Misrepresentations.

In an action to set aside a release and to recover upon a contract as originally made, on the ground that such release was procured hy false representations, there was no evidence as to what occurred between the parties to it at the time the release was signed, but evidence was given showing that other dealers under similar contracts had been induced by similar representations to accept similar reductions. Held, that the fact that false representations were made to one person does not establish- that they were made to another; that there was an entire failure of proof, and that a nonsuit was properly granted.

This is an appeal from a judgment dismissing a complaint at the equity term of this court.

Rollin Tracy, for app’lt; Michael M. Forrest, for resp’t

The action was properly disposed of by the court below. The gravamen of the action was that the defendant by false or mistaken representations, induced one Hewitt to execute a release in writing, by which he agreed to accept a certain

p. 731

number of tons of ice as his pro rata of a previous contract, and that the quantity of ice he thus agreed to accept was less than the quantity to which he was entitled. It is alleged that by divers mesne assignments the cause of action of Hewitt has been vested in the plaintiff in this action. The judgment demanded in the complaint is that the said release given by Hewitt to defendant be vacated and set aside, and that the plaintiff recover damages.

No evidence offered on the part of the plaintiff was excluded to his injury. He had the burden of proof to establish by a fair preponderance of evidence that the agreement or release was obtained from Hewitt by misrepresentation. There does not appear to be in the case a particle of proof that any misrepresentations were made to Hewitt, or that Hewitt relied or acted upon any representations whatever in executing the release or agreement above referred to. Hewitt died in 1871. Bramore, the president of the defendant company, who had charge of the transactions with ice dealers, died before the trial of the cause. There was absolutely no evidence in the case as to what occurred between Hewitt and the defendant’s officers at the time of making the agreement. Dishonest and unfair dealings are not presumed in law. Evidence to invalidate the release should be direct and not doubtful or equivocal.

The appellant was allowed on the trial of this case to introduce proof that other dealers under contracts similar to Hewitt’s were induced by defendant’s misrepresentations or mistake to accept the same quantity of ice as their pro rata under their contracts in the year 1870. This would not establish that there was any fraud or mistake on the part of the company in dealing with Hewitt. The fact that false representations are made to one person does not establish that they are made to another. For anything that appears in this case, it may well be that the release was executed by Hewitt upon grounds entirely satisfactory to him.

Plaintiff appears. to have failed entirely in his proof, and the nonsuit was, therefore, properly granted.

. The judgment appealed from should be affirmed, with costs.

Allen, Bischoff and Pbyob, JJ., concur.