Seaman v. Low — 17 N.Y. Super. Ct. 337

Majority

p. 337

Henry I. Seaman v. Daniel Low.

Headnote

1. Where a plaintiff, by the fraud of the defendant, has been induced to contract to purchase property from the latter, (viz., 250 shares of the stock of the Staten Island Association,) and has made payments thereon, he may, on discovering the fraud, rescind the contract and recover back the money so paid.

2. Before the Code, such money could be recovered back, by action of assumpsit, under a declaration containing only the common money counts.

3. Where the defendant sold to the plaintiff shares in an association formed for the purpose of buying and selling lands and dividing the profits thereof, and promised as part of the terms of sale that he would put into the association two farms at the cost thereof ($16,000); but the defendant subsequently, before the shares were delivered, contributed the farms at a much greater sum, ($85,000,) and received payment therefor from the association ; the plaintiff was not bound to receive the shares so sold. The dealing of the defendant therewith altered their substantial character. They were not aliquot parts of the same capital which they were by the terms of sale to be, and the plaintiff is entitled to recover back the payments he had made on account of the sale.

4. In such an action, and under such a declaration, the plaintiff will not be precluded from showing such fraud as establishing a right to rescind and reclaim the money, merely because he has furnished a bill of the particulars of his claim; which bill states the said payments, ($5,250 in all,) and their dates, and describes them as so much “ money received by defendant, on account of stock which defendant never delivered to plaintiff," and also claims “ the further sum of $5,250, being the proceeds of 250 shares of the stock of the Staten Island Association, sold by the defendant on account of the plaintiff, on the 1st of November, 1838,” with interest, &c.

5. Especially should it be so held, when there is not only no affidavit or other evidence furnished by defendant of, surprise, or that he has been misled,

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but on the contrary it appears that the defendant had.actual- and timely notice, that the ground of the plaintiff’s claim to rescind, was. the .defend-ant’s fraudulent representation to induce the plaintiff to contract, for the 250 shares.

6. It is not the office of a bill of particulars to state the grounds upon which the plaintiff claims to recover, but only to point out the items and particulars embraced in his claim so as to identify them.

7. A variance between the proofs-and the plaintiff’s bill of. particulars will not be deemed material unless the defendant is misled thereby.

(Before Slosson, Woodruff and Pierrepont, J. J.)

Heard, October 15th, 1858;

decided, March 12th, 1859.

This case comes before the Court at General Term, on questions of law arising at the trial, and there ordered to be heard, in the first instance, at the General Term. It was tried before Mr. Justice Slosson and a jury, on the -16th of November, 1858, when a nonsuit was ordered. . ,

... The action was commenced on the. 6th of .November, 1838, by the, service of, a declaration,. which- -.contained- the . common money counts,-in-assumpsit.-- The-plea was the general-issue, with a, notice of set-off, for goods, sold, labor performed, money lent, money paid for .plaintiff, and for money by him'received to defendant’s use. There h'ad -been three previous trials. of-the action.in this Court., ..On the second trial judgment was.rendered for the. defendant, and on the third trial-for the plaintiff,’.and each of those judgments; was reversed -by the Court of Appeals-. •

"■ The following is a brief summary' of the facts proved, or offered to be. proved at the trial in .November, 1858, and of the proceedings there .had. • ■

..1. \On the 9th August, 1836, certain persons,.of whom the defendant, was one, owning: lands at-Clifton,- near the Narrows- on Staten Island, agreed to form a Joint Stock Company in. the nature of a partnership, to sell out the sainé by retail .in parcels, believing (as the articles of association .declared) .that.a profit might be, thereby realized to said Company. ■ . - .

:- A- subscription paper was- accordingly drawn up of that-date, whereby the subscribers thereto agreed to take a specified interest in the real estate, already purchased, and to be purchased within the then present year.

Articles of association (called The .Staten Inland Association) were formed-to carry out this purpose, signed by the .defendant,

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constituting the subscribers thereto stockholders; dividing the lands into 15,000 shares of stock; which provided that the then present owners should convey the land to trustees named; constituting the defendant Low a director, and providing for dividing the net yearly sales among the stockholders pro rata.

2. At this time the defendant Low owned two farms, one of which was purchased by him September 20th, 1834, for $6,000, and the other September 30th, 1835, for $10,000, in all $16,000, which were put into the capital of the association.

They were by him conveyed November, 1837, to the association, the one costing $6,000 at $25,000; the one costing $10,000 at $60,000; in all an advance of $69,000 over the cost of $16,000.

3. The defendant made a contract with the plaintiff before the said conveyances to the association, for $10,000 at par of the shares, being 250 shares; and at various dates, from September' 6th, 1836, to April 17th, 1837, the plaintiff made payment of sundry sums as installments, on the shares to defendant. There were five of such payments, and the aggregate amount was $5,250.

4. At the time of the contract between these parties,, (as the plaintiff offered to prove,) the defendant represented that he would put in these lands at cost, while the shares he professed to sell to the plaintiff in fact consisted of a part of his excess over cost.

5. On the 6th November, 1838, the plaintiff demanded the return of his money from the defendant, and, the defendant being about to go to Europe, he brought the present action on the same day.

6. On the 7th November, 1838, the defendant tendered to the plaintiff the 250 shares, demanding payment of the amount of the installments, then unpaid.

7. And the defendant, after this suit had been brought, (as the plaintiff offered to prove,) applied the 250 shares to his own use.

8. The plaintiff sought, by this action, to recover back the money which he had paid on the contract, on the ground of such fraudulent representations and deceit.

9. During, the suit, on the 2d March, 1842, a bill of particulars of the plaintiff’s demand was rendered, which stated the

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said payments and their dates, and described them as so much money “ received by defendant, * * on account of stock which defendant never delivered to plaintiff;" and which bill of particulars also claimed “ the further sum of $5,250, being the proceeds of 250 shares of the stock of the Staten Island Association, sold by the defendant on account of the plaintiff, on the 1st of November, 1838, together with interest thereon from that date."

10. The Judge excluded evidence of defendant’s aforesaid representations, and of their falsity; also evidence that the defendant, since this suit was commenced, had sold said stock; also that the defendant, in November, 1843, “ was 'informed that the plaintiff complained that the defendant had represented that he had put his lands aforesaid into the association at their cost, but that he had put them in at a greatly enhanced price, as a ground of reclaiming his payments;” and also, that on the 21st of October, 1857, notice had been given to defendant’s attorney that the plaintiff would be examined on the trial as a witness, {inter alia,) “ on the representations made by the defendant to the plaintiff, as to the property of the defendant paid or put into the Staten Island Association, the rate at which it was put in, and the cost and value thereof.”

“ Also, as to the defendant’s representation to the plaintiff to induce him to agree to take the stock, and the untruth or truth thereof.”

The whole of this evidence was objected to, on the ground that all of it “ was variant from the matters contained in the plaintiff’s bill of particulars, and therefore inadmissible;” and that any act of the defendant in selling the stock after this suit was commenced could not create a right to maintain it, and that evidence of any such act was irrelevant. The evidence was excluded and the defendant excepted. At the close of plaintiff’s evidence, he was nonsuited, and he excepted to that decision.

The questions of law raised by such exceptions were, at the trial, ordered to be heard, in the' first instance, at the General Term.

Daniel Lord, for plaintiff.

I. The fraud was such as rendered the contract between the plaintiff and defendant void, and entitled the plaintiff, on demanding back his money, to recover it.

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1. The price at which the defendant’s lands were put in entered into and constituted a vital part of the contract, between the plaintiff and defendant.

2. The other associates had no connection with this transaction between the plaintiff and the defendant, and it was not necessary for the plaintiff to implead any other than the party who had committed the fraud and had its proceeds in his hands.

3. The plaintiff, by demanding back the money specifically, had done all which was required of him to rescind the contract, and to entitle himself to the money.

4. He was not bound to state the ground on which he claimed it back; his demanding back all the price or money paid was a full and sufficient act of rescinding. The defendant must be supposed to know the ground, having himself committed the fraud.

5. All that is required for rescinding is, to make a demand in such terms as is only consistent with rescinding.

The demand in the plaintiff’s letter of November 6,1838, was fully sufficient.

IL The bill of particulars did not "exclude the plaintiff from his claim.

1. The only office of a bill of particulars is to specify dates, sums and consideration. Here all were specified.

2. The bill of particulars is in all respects true and consistent with the plaintiff’s claim. It does not, as supposed by the defendant’s counsel, specify a claim for not delivering stock.

'3. It is literally and "substantially true, both as to the identifying of the stock and as to excusing any redelivery on a rescinding.

4. It imported with certainty a rescinding, as the only interpretation reasonably to be given to its language. It could not be understood as claiming back money paid' on a contract unperformed as yet by the plaintiff, nor because a fair bargain had become unprofitable.

5. The object of a bill of particulars is only to prevent surprise at the trial. That object was fully accomplished.

6. The plaintiff’s case being of great justice, should not be excluded by a strict construction of a bill of particulars.

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Charles O'Conor, for defendant.

I. The second and third heads in the plaintiff’s bill of particulars are entirely irrelevant. They afford no basis for the evidence offered. (Quin v. Astor, 2 Wend., 579 ; Humphrey v. Cottleyou, 4 Cow., 55 .)

II. The first head in the bill of particulars afforded no legal basis for the admission of the-evidence offered.

1. The exceedingly comprehensive efficacy of the common counts, and particularly of the count for money had and received, left the plaintiff in assumpsit a range of proof almost unlimited, and left the defendant virtually without notice of the claim intended to'be proven. The - declaration was-merely “a legal fiction.” ( 10 Mass. R., 436 ; Osborn v. Bell, 5 Denio, 376 ; 1 Chitty’s Pleadings, 8th Am. ed., Springfield, A. D. 1840, side paging 100 and notes, 107 and notes, 352 and notes; Putnam v. Wise, 1 Hill, 240 , note.)

2. To obviate the gross injustice which must often result to the deferidafit from this extreme liberality- towards the plaintiff,- the practice of requiring a bill of particulars was introduced. The bill of particulars was a natural, as contradistinguished'-from a technical procedure. .In this respect it possessed the character cl'aifiied for the system of pleading -introduced by the Code. In this method of procedure formal variances are less-regarded than they were in construing common law pleadings.' But variances in’the-nature and substance of the statement are more effectually guarded against- and prevented than was practicable finder the logic of the common law. (London Law Mag. and Rev. for Feb., 1858; Walter v. Bennett, 16 N. Y. R., 253.)

(1.) An identity of principles must have governed the practice and decisions in respect to the. conformity required to exist-between a bill of particulars in debt or assumpsit under the old system and that which should now govern in the ordinary action under the present Code. (Hess v. Fox, 10 Wend., 438 , 439.)

(2.) If the old system allowed a recovery, based upon fraud, and as upon a tort in an action ex contractu, it was, in that respect, very paradoxical, inconvenient to. the Court and oppressive to the defendant. Besides, it violated that leading and fundamental principle of practice, that tort and contract 'should neither be blended upon the record nor tried together—a principle so much

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■approved that it is expressly saved by that great destroyer, the Code itself. ( 17 Pick., 549 ; 1 T. R., 387; 10 Mass., 436 ; 2 Hall’s N. Y. S. C. R, 453; Cur. per Van Hess, 6 Johns. R, 141, 142.)

(3.) The soundness of such a practice is very doubtful. But-assuming it to have been established by judicial opinion, then the ■bill of particulars was the antidote to its evil tendencies, and full effect should be given to the latter, so as to prevent surprise. (People v. Monroe C. Pleas, 4 Wend., 200 ; McNair v. Gilbert, 3 Wend., 346 ; Chesapeake, &c., v. Knapp, 9 Peters, 564.)

3. The theory of the plaintiff’s demand, as set out in the first head in the bill of particulars, is sound, simple and intelligible. It is that he purchased stock from the defendant and paid for it; and that the defendant having made default in delivering the stock, he claimed to rescind the violated contract and to recover back his' money. ( 1 Wend., 64 ; 12 J. R., 363; id., 274.) Hotting could be more widely different from this than the two ■grounds of recovery suggested in the indefinite offers made at the trial. In the most favorable view for the plaintiff, these were—first, fraudulent representations, which would entitle the plaintiff to rescind the contract in toto; and, secondly, imperfect performance of the contract, in selling his lands to the Company at a higher rate than he had promised. The defendant could not have anticipated or prepared for a case so foreign in its whole scope to that stated in the bill of particulars. (Davenport v. Davies, 1 Mees. & W., 570; Meering v. Hellings, 14 id., 711, in point; Desoby v. Delaister, 2 Harr. & Johns., 221, 3d exception; Law v. Thompson, 15 Mees. & W., 543.)

(1.) If the plaintiff intended to claim that the contract was obtained by a fraudulent representation of a preexisting fact; t. e., that plaintiff had conveyed his property to the Company at-a-lower price, the bill of particulars clearly points to an entirely different case.

(2.) If he meant to claim that a fraud had been committed by the plaintiff in representing that he would thereafter convey to the Company at a lower price than he actually exacted, there was, in his proposed case, a double infirmity.

{a.) Fraud cannot be predicated of the breach of a promise. (Alston v. Mech. Mut. Ins. Co., 4 Hill, 336 , 342; 18 Wend., 609 ;

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6 Cow., 352 ; 6 Harr. & Johns., 252-426; 9 Watts, 572 ; 1 Rawle, 315 .)

(5.) It was an entire deviation from the ground of action suggested in the bill of particulars.

4. If the plaintiff sought to recover on the ground that the defendant had violated his promise, by charging the Company too much for the lands conveyed, the claim was not admissible in this action for many reasons.

(1.) It was an entirely different ground of action from that specified in the bill of particulars.

12.) Under the circumstances it was not a ground of total rescission. The defendant had conveyed his land, and the parties could not be placed in their original condition. Consequently, the plaintiff could only recover, at most, his damages, in a special assumpsit, founded on the subsisting unrescinded contract. (Lynch v. Robertson, 18 Johns., 456 ; 6 Cow., 17 ; 5 Hill, 390 , 391.)

(3.) In an action to recover such damages, all the associates would be necessary parties. This objection may be taken at any stage of the action, especially as neither the declaration nor the bill of particulars afforded the defendant an Opportunity of setting up the non-joinder in his pleadings. (Williams v. Allen, 7 Cow., 318 .)

III. Seventeen years before the trial, this court solemnly determined that this evidence was not admissible under the pleadings and bill of particulars. The plaintiff did not apply for leave to alter or amend his proceedings; and the defendant, in reliance upon that judgment, and the implied approval of it by all the courts of appeal, has forborne to perpetuate testimony or otherwise to notice the pretense. It would be manifestly unjust to depart, at this late day, from the rule thus adopted as the law of this case. ( 5 Wend., 375 ; 6 Cranch, 267 ; Oakley v. Aspinwall, 3 Kern., 505; Seaman v. Low, in this court, June term, 1854.)

1Y. The notice given just before the last trial cannot affect the question, unless it be to show the court how dangerous it would be to afford this desperate and defeated litigant an opportunity to make a new case by his own testimony. Ho facility should bé afforded to such desires.

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Y. It is quite apparent that, after struggling for years to obtain and hold a judgment, founded on the allegation that he once owned this stock, and had sold it to the defendant, this plaintiff should not be permitted to change his ground, and, for any reason, to rescind the contract under which his title accrued. (Harnor v. Groves, 29 Eng. L. and Eq., 220.)

YI. The offer to show that the defendant had converted the stock to his own use, after the commencement of the action, was manifestly inadmissible. If the plaintiff had given evidence of a cause of action existing when the suit was commenced, and such evidence was contested, or in any degree equivocal, then it may be that facts occurring after suit brought might have been shown to fortify the plaintiff’s case. But a cause of action could not be made out in this case by proving that the defendant had been guilty of a conversion of the plaintiff’s property after suit brought.

The nonsuit should be affirmed.

But for the bill of particulars in this case, the plaintiff might have shown that the defendant had money of his (the plaintiff’s) to which he had no right, and which he had obtained by false representations, fraud or deceit, and the evidence offered by the plaintiff, touching the defendant’s representations, would clearly have been admissible.

A bill of particulars does not change the nature of the action. It is not a declaration, nor is it a novel assignment. Its office is to apprise the opposite party of the claim made against him, so that he may not be surprised at the trial; and an omission or mistake not calculated to mislead, will be deemed immaterial. ( 4 Wend., 360 .) An error in date, or in describing a parish, in an action for rent, or in describing the plaintiff’s.business or the defendant’s association, has been held to be immaterial. (2 Taunt., 224; 1 How. Pr. R., 172; 3 M. & S., 380; 8 Bing., 411; 10 Wend., 258 ; 3 Wend., 344 .)

And Lord Ellenborough held, that where a payment made on account of the defendant to A., was stated in the bill of particulars to have been made to B. it was immaterial unless the defendant would make affidavit that he had been misled by the particulars. The cases on this subject are very numerous, and

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they, all tend to establish the doctrine that, where .the bill of particulars has not misled the opposite party, he cannot take advantage of it to exclude the offered proof. In the case before us there is no suggestion that the defendant had been .misled, or that he was surprised by the offer at the trial. • Before the suit was commenced the plaintiff had given the defendant written notice that, “as the whole project had entirely failed,” he demanded back the money, which he had paid.. • On the day after, the defendant “ refused to receive.the stock or to pay any more money, alleging the reason to be, because he considered it worthless and of no value.’.’

The bill of particulars, stated the dates of the payments and the amounts of the money which the plaintiff sought to recover back; and undertaking to.make it more specific, stated how or on what account it happened to have been- paid. • ■

The defendant could hardly have been misled by this bill of particulars; it was a clear indication that the plaintiff claimed to recover back the money paid at the dates specified, and paid on account of stock which had never been delivered.- The-exact amount of money was claimed, with .interest from the. dates of payment, and not damages for breach of contract in not delivering the stock. If the defendant had deemed the meaning doubtful,, he could have moved for a more specific bill. But the whole, taken together, does not admit of the unequivocal interpretation that the plaintiff claimed damages on. breach of contract or for a conversion of the stock. I do not think the defendant was either misled by the particulars, or surprised by the offer at •the trial, .and I am acquainted with no. rule of law which should compel the- Court to exclude the evidence (as offered) of the defendant’s representations.

. This cause was tried since the passage of the Code which was designed.to- introduce a more liberal practice than before existed, and the act of .1849, (ch. 439, § 2,) made its provisions applicable' to existing suits. (Code, § 169.)

The plaintiff in this action would have had a right to recover back his money, paid, if the consideration had wholly failed; or if the thing.offer.ed was quite different from the. thing bargained for

In the case before us the offer-is to. show .that .the stock tendered was a widely different. thing from the stock bargained, for

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and on account of which the plaintiff had paid his money; that it was a sham stock, a deceit, issued upon fancied profits and not upon any real basis.

1 think the evidence competent under the pleadings in the case, and that a new trial should be granted, with costs to abide the event.

It is not claimed that, under the complaint or declaration in this action, the evidence which the plaintiff offered on the trial was incompetent, unless the plaintiff’s bill of particulars had limited the general scope of the declaration, so as to debar him from claiming to recover upon the facts sought to be proved.

The declaration was in the action of assumpsit, and contained only what, before our Code of Procedure, were called the common counts.

The bill of particulars stated a particular account of the plaintiff’s demand, as follows, viz.:

“For $1,000 received by defendant on 6th September, 1836, (on account of stock which defendant never delivered to plaintiff.)

“ $1,500 received by defendant, September 28, 1836, ( “ )

“ $1,000 “ “ November 1, 1836, ( “ ) ”

and so on.

The plaintiff's proofs showed that certain parties, among whom was the defendant, under date of August 9, 1836, agreed to take an interest in real estate “ then purchased, or about to be purchased,” on Staten Island, within that year, and to the amounts affixed to their respective names—the purchases in all not to exceed 1,500 acres, or $600,000 in amount—with a view to realize a profit on sales to be made thereof: Also, that, under the same date, articles of association were entered into, reciting that the defendant Low and Moulton Bullock, and others, had purchased and were then seised of several parcels of land on Staten Island, which they had laid out into lots and proposed to sell and they deemed it desirable to form the owners and partners interested into a joint stock company to sell out the same for the benefit of the joint stock company by retail—it being believed that a profit may be realized to said company by such sales.

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After such recital, the articles provided that the property of the company, consisting of the aforesaid real estate, should be divided into 15,000 shares; that the said Bullock and others now holding the title should convey the land to trustees named, fot the benefit of the association and for the owners of stock (or shares) in proportion to the number of their respective shares; that directors should be appointed, and a president and other officers and agents; that shares might be transferred on the books of the company, and should be personal property; that the directors should take charge of the moneys received from sales, make payments, make all contracts, regulate prices and direct the sales of the real estate, and declare dividends.

The plaintiff then gave evidence, which was probably sufficient to show prima facie, that, on or about the 6th of September, 1836, the defendant sold to him 250 shares, at the price of $10,000, and reeéived sundry payments thereon, which payments were those mentioned in the plaintiff’s bill of particulars, and which, by this action, the plaintiff sought to recover back. There was also evidence given that, in November, 1838, the agent of the defendant called on the plaintiff and demanded the amount remaining unpaid, produced to the plaintiff a certificate for 250 shares of stock, and offered to transfer the same to the plaintiff upon receiving the amount due; that the plaintiff refused to pay the balance or receive the certificate, because the defendant had never offered him the stock before, and also because he considered the stock worthless and of no value.

The plaintiff then offered to prove that, when he made the contract with the defendant for the shares, the defendant represented to him that he would put into the association the lands which the defendant then held, at their cost.

And also to show that, at that time, the defendant held lands which had cost him $16,000; that, instead of conveying them to the association at this price, he put them in at a great excess over their cost; and that the stock which he sold to the plaintiff was received by the defendant from the association as mere profit and as the excess in the price at which he sold the lands to the association over the price paid for the said lands. And the plaintiff, as part of his proofs, offered in evidence the deeds to the defendant, by which he became the owner of the-lands for the

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consideration of $16,000, expressed therein, in 1884 and 1835, and deeds from the defendant to Moulton Bullock, dated November 1, 1837, for the same lands, for the consideration of $85,000, and a deed from Bullock to the trustees of the association, dated November 17, 1837, for the nominal consideration of $1, conveying the same lands.

The purpose, thus declared, was, to "show, that, instead of putting his lands into the association at their cost, the defendant, more than a year after the sale to the plaintiff, and before the stock was issued which was the subject of that sale, adopted the circuitous mode of conveying to Bullock for a consideration of $85,000—Bullock conveying to the trustees.

These proofs were rejected, on the ground that such proof “ was variant from the matters contained in the plaintiff’s bill of particulars, and, therefore, inadmissible.”

By chapter 439 of the Laws of 1849, section 2, subdivision 1, sections 169 and 176, inclusive, of the Code of Procedure, were made applicable to future proceedings in existing suits; and subsequently, by the 459th section of the Code of Procedure as amended in 1851, the provisions of that act are made to apply to the trial and all future proceedings in actions then pending, when there is an issue of law or of fact, or other question of fact to be tried.

This action was commenced in 1838, and the trial upon which the question now under consideration arose, was had in 1858.

The provisions of the Code of Procedure are therefore applied to this trial, and all subsequent proceedings in the action.

By the 169th section of the Code, it is enacted that no variance between the allegation in a pleading ánd the proof shall be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits; and whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled.

By section 170, it is provided that where the variance is not material, as last above provided, the court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs.

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- On. the-other, haúd, in order that some limitation-may .be imposed-upon the 'great generality.of the. sections, section 171 provides that where the allegation - of the cause of action, to which the proof is directed, is unproved, not in ■ some particular or particulars only,- but in its entire scope and meaning, it shall not be deemed a case of variance within the last two .sections, but a failure of proof.

: In applying these provisions of the Code to the .present case, let it be supposed-: that the words of the bill: of particulars were actually inserted in the declaration itself to:-designate the moneys had and receivedhythe defendant, which the plaintiff sought hereto recover, and let it be assumed that-the'proof offered was variant from'the allegation;; .for .it .was upon that ground alone that the-'evidence was rejected-; was-the variance in the-entire scope and meaning of the- allegation of the cause of action ? or was it-a-variance in-some-particular only ?

The nature- of‘the claim, to wit, for moneys had and received by the defendant on'the days specified'which he'was not entitled .to retain, is -not sought to 'be changed. : The identical moneys are claimed in the allegation and under the proofs offered, and under each they are described as received -by the defendant on account of stock.- The only difference between the allegation-and the proofs' offered, is that in one it is stated that the stock was never delivered, by the other it is sought to show that the conduct of the-defendant in relationto the stock was such.that he could not deliver-the stock-in the state' and condition, or conferring the rights, which were contemplated- at the time of the purchase ;-or, in-another .aspect, that the-conduct'of the defendant was. such that the plaintiff-was ■ not bound to receive the stock. -

It seems to me that this-was,' at.most, a variance “in a particular only.” In either aspect" the cause of. action is identical in its scope and meaning. The words, “ which the.-defendant-never delivered' to plaintiff,”, might be stricken out,, and still -the cause of action would be well and sufficiently stated; and if so, then the-admission of the-evidence offered would certainly not leave the allegation'of the cause of action unproved in its entire scope and meaning. - • : ■

No proof was offered by the defendant cthat the variance had misled him, or that its reception would mislead him, to his pre

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judiee; while on the other hand the plaintiff offered to prove circumstances which would seem to have apprised the defendant that the plaintiff would, on the trial, claim to recover on the precise ground whieh he sought-to establish by the evidence offered.

The cases of The Dry Dock Bank v. The American Life Ins. and Trust Co., (3 Comst., 344,) De Peyster v. Wheeler, (1 Sandf. S. C. R., 719,) Jackson v. Sanders, (1 Code R., 27,) Fort v. Gooding, ( 9 Barb., 371 ,) Getty v. Hudson River R. R. Co., ( 6 How., 270 ,) furnish illustrations of the liberal -view- taken by the courts in favor of disregarding ¡variances when the party has not been misled; in some of .which the very nature of the relief was changed by the difference between the allegation and the proofs.

And in opposition to a possible suggestion, that ■ although the court may- disregard a variance when the proofs are given, .-they are not bound to receive proofs which will create a variance, the case of Catlin v. Gunter (1 Kern., 368,) in the Court of Appeals, shows that-the- court are bound to receive the evidence when offered, if the variance to arise therefrom be not such as to leave the allegation unproved in its entire scope and meaning. ■

If these views are -correct, and- the variance would .be immaterial if the declaration itself had-contained the very words- out of which the alleged variance arises,, then I think it clear-that when the alleged variance arises from the terms of the bill of particulars-, the case is no stronger for the defendant.

The identity of the moneys, and the account-upon which.they were received- by the-defendant, remain the same under the proposed proofs as under the-bill.of particulars:- The particulars are considered, as- incorporated in the declaration -itself, as said in 14 J. R,, 329, and 15 id., 222. And yet it has been held that a-variance between the proofs and the-bill of-particulars is immaterial where it appears that the defendant has not been misled. (See 1 Taunt., 224; 1 Camp., 69, n.) If this last proposition be correct, and, T think, it is the true rule, then there-is no occasion to refer to the provisions of the-Code to-show that the proof offered-might be received ;-for the evidence was admissible, under rules existing before the .Code-was enacted.

In. one- aspect of the case -there was no. variance ■ whatever between the proofs offered and the bill of particulars. The stock had, in fact, never-been delivered.- There-had been an offer to

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deliver it, but it was not accepted. If the words in the bill of particulars were taken as used for the purpose of identifying the stock and as having no other meaning, then there was no variance. They show that the stock on account of which the money had been paid was not in the plaintiffs’ hands, but in the hands of the defendant, and so that the contract of sale had never, in fact, been fully executed by actual delivery and acceptance. It seems to me just to say, that the words of the bill of particulars are susceptible of this construction, and that they should have been so construed, unless the defendant showed that he was in fact misled by another more probable interpretation; and if the words, “ which the defendant never delivered,” be taken as used for the purpose of excluding the idea that the stock on account of which the moneys were received by the defendant was in the plaintiff’s hands, then there was no variance.

It is only by treating these words as a specification of the grounds upon which the plaintiff sought to recover the money that any question of variance arises. I apprehend that it is not the office of a bill of particulars to state the grounds of a plaintiff’s claim, but simply to point out the items and particulars which he claims, in such a manner as will enable the party to prepare Tor trial, and if the specification be ambiguous or susceptible of a double interpretation, the defendant should apply to have it made more definite and certain, or the plaintiff would be permitted to give any evidence not clearly excluded by the terms used, subject only to the duty of the Court to see that the defendant is not misled to his prejudice. And so, also, if a plaintiff do insert the grounds of his claim in his particulars, the court will so far hold him to that specification as to see that the defendant is not misled thereby, but that is all the effect which I think should be given to such a specification.

And again, in another aspect of the case, it seems to me that the proofs offered were within a fair construction of the bill of particulars, even if the words employed therein must be treated as a specification of the grounds of the plaintiff’s claim.

The purchase was made by the plaintiff of stock to be issued; when issued, that stock would entitle the plaintiff to an aliquot part of the whole property of the association. The amount of that property would, of course, depend upon the real estate pur

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chased - and the prices paid therefor. If the sale made by the defendant to the plaintiff was of a given number of shares in the association which, when issued, should entitle him to a fixed aliquot part or proportion of the property of the association, consisting in part of real estate for which the association should pay out in stock or money $16,000; and the shares finally issued and offered to the plaintiff entitled him only to the same aliquot part of the same real estate, and the association had been, by the defendant, required to pay $85,000 therefor, then the stock offered to the plaintiff was substantially different from the stock bargained for. This was a difference not in mere value; it was a difference in the very subject which the stock represented. Instead of offering to the plaintiff an aliquot part of the property of an association whose funds were invested in- real estate at the rate of $16,000 for a given parcel, stock was offered in an association whose funds were invested in the same real estate at a rate of $85,000 for the same parcel.

The stock offered did not represent so much actual property as the stock bargained for would have done, had the representation made at the sale (as the plaintiff alleges and offered to prove) been carried out.

Nor in this view of the subject does the proof offered amount to a mere breach of promise by the defendant. The proof would have shown that, contrary to his representation made as an inducement to the purchase, he had so dealt with the association as to alter the material quality of the- stock he sold. And that in truth the stock which the company thereafter issued, and which had no actual existence when the bargain was made, was not what it was represented and understood it should be.' In this sense, the stock on account of which the money was paid was never delivered by the defendant.

There seems to me no warrant for saying that the reception of the evidence would in effect permit the plaintiff to change his cause of action from contract into tort. The offer was not to prove that the plaintiff was induced to enter into the contract by fraud, or false pretenses, and thereupon to claim damages as in an action on the case for deceit.

Nor have I deemed it necessary to consider the offer as in any degree impeaching the good faith of the defendant in making

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the contract of sale. The offer is consistent with the most upright, intentions in the minds- of both parties at the time the contract was entered into. The offer, therefore, in this view, did not change the allegations, nor the statements in the bill of particulars in their entire scope and meaning, within the case of Walter v. Bennett. (15 N. Y. R., 250.)

Whether the subsequent acts of the defendant in view of what the plaintiff proposed to prove was a part of the terms of sale, must, if proved, be regarded as an intentional -fraud upon the plaintiff or only as so operating upon the subject matter of the sale as to entitle the plaintiff to reclaim the money paid without necessarily involving such an intentional fraud, is not, in my judgment, material.

I feel constrained to concur in the result to which Justice Pierrepont has arrived, viz.: that the order dismissing the complaint must be reversed and a new trial be ordered, costs'to abide the event of the suit.

Slosson, J., dissented.

New trial ordered; costs to abide the event.