Miller v. Reynolds — 55 N.Y. St. Rep. 237

Majority

p. 237

Ransom H. Miller, App’lt, v. Thomas J. Reynolds et al., Resp’ts.

(Supreme Court, General Term, Fifth Department,

Filed October 20, 1893.)

Headnote

IFraud—Transfer of real estate.

In an action to compel defendants to reconvey to plaintiff certain premises bn the ground that the title thereto was obtained by fraud, it appeared that part of the consideration for the transfer was a promissory note of a corporation signed by defendant as president. Plaintiff contended that defendant was not authorized to make the note, while there was evidence tending to show that the corporation owed defendant the amount of the note, and defendant testified that he exhibited to plaintiff at the time of the trade an agreement with the corporation and informed him that it gave him a right to make the note, and he testified that he believed he had such power and right. Held, immaterial whether the agreement in fact gave defendant the power to make the note; it was sufficient to sustain the transfer if he gave the note in good faith believing he had such power.

Appeal from a judgment entered in Monroe county upon the •decision of the Monroe equity term, dismissing the complaint, with costs.

John Van Voorhis, for app’lt; E. A. Nash, for resp’ts.

This is an action to compel the defendants to re-convey to the plaintiff certain premises described in the complaint, situated on Monroe avenue in the city of Rochester, on the ground that the defendant, Thomas J. Reynolds, obtained title thereto from the plaintiff by fraud.

The answer was a general denial of each and every allegation of the complaint.

The court found that the plaintiff had failed to establish the •■allegations of fraud; and further found that the plaintiff by a sub

p. 238

sequent agreement with the defendant, Thomas J. Reynolds, ratified and confirmed the sale and conveyance.

The plaintiff conveyed the property in question to the defendant, Thomas J. Reynolds, in the month of February, 1891, at the price of $22,000, subject to a mortgage thereon of $6,000, in consideration of which the defendant transferred to the plaintiff $10,000 of the stock of the Trotter Refrigerator Company, and gave the plaintiff what purported to be the promissory note bf the Refrigerator Company made by the defendant as its president for $6,000.

The testimony as to the representations that were made by the defendant to the plaintiff and to his agent, Hapgood, to induce and bring about the conveyance of the property was very conflicting and contradictory.

The plaintiff’s evidence tended to establish the allegations of his complaint, that he was induced to make the conveyance by material representations made to him by the defendant that were false and known to the defendant to be false when he made them.

The defendant by his own testimony, and "that of other witnesses he called, controverted and denied the plaintiff’s charges of fraud in every particular.

The trial justice, who bad the advantage of seeing the witnesses and hearing their testimony, found that the plaintiff had failed to make a case, and dismissed the complaint.

The plaintiff contends that the defendant was not authorized to make the $6,000 note which he gave the plaintiff in part payment for the property.

There was evidence tending to show that the company was indebted to the defendant at the time the note was made in an amount equal to the amount of the note.

He claimed that power was' given him to make the note by a written agreement he had made with the company.

He exhibited the agreement to the plaintiff at the time of making the trade, and informed plaintiff that he claimed that the contract gave him the right to make the note, and he testified that he believed he had the power and right to make it.

That being so, it is not important whether the agreement, in fact, gave him the power. It was sufficient if he could satisfy the court" that lie gave the note in good faith believing the agreement gave him the right to make it.

If he was not authorized' to make the note he would be liable to pay plaintiff the amount of it, but it would not have been any ground for setting aside the conveyance.

The trial court found that the plaintiff after being fully advised of all the facts ratified and confirmed the sale.

There was evidence tending to sustain the finding.

The plaintiff claims that the answer being simply a general denial, that not having pleaded ratification the defendant was not in a position to avail himself of such a defense.

The evidence of ratification came into the case without the objection being made that the pleadings did not warrant it, and it-is too late upon appeal to raise the question.

p. 239

The. answer can be amended even now if substantial justice will be thereby promoted.

The judgment appealed from should be affirmed, with costs of the appeal.

Dwight, P. J., Haight and Bradley, JJ., concur.