Plimpton v. Friedberg, 39.

• Decision Date: 27 April 1933
• Docket Number: No. 39.,39.
• Parties: PLIMPTON v. FRIEDBERG.
• Court: New Jersey Supreme Court

166 A. 295

PLIMPTON

v. FRIEDBERG.

No. 39.

Court of Errors and Appeals of New Jersey.

April 27, 1933.

Syllabus by the Court.

1. In an action for deceit the falsity may consist in making a representation of a material fact knowing it to be false, or in making a representation which is untrue without knowledge whether it is true or false and by coupling with the representation an express or implied affirmation that it is known to be true of personal knowledge.

2. Held that the proofs in the instant case were sufficient to go to the jury both as to knowledge of falsity and as to implied affirmation of personal knowledge, and that therefore the trial court erred in directing a verdict for the defendant.

Appeal from Supreme Court.

Action by Jenny F. Plimpton against Louis Friedberg. From a judgment in favor of the defendant, the plaintiff appeals.

Judgment reversed in accordance with opinion.

Cole & Cole, of Atlantic City, for appellant.

William Charlton, of Atlantic City, for respondent.

CASE, Justice.

Plaintiff appeals from a judgment entered on a directed verdict for the defendant, Louis Friedberg, in the Atlantic circuit in an action brought by the plaintiff for the alleged fraud of several defendants—judgment of nonsuit having gone in favor of all except Louis Friedberg—in selling to the plaintiff, on March 12, 1930, for the total sum of $26,200, oil paintings represented by the defendant to be by the artists Romney, Gainsborough, and Reynolds, respectively, all well-known English artists of the eighteenth century whose works bring large prices. None of the paintings were by the named artists. The sum of $18,000 was paid for the alleged Romney and $8,200 for the Gainsborough and the Reynolds. The trial judge in directing the verdict stated that, although it was admitted that the representations had been made and that they were not true, nevertheless the evidence did not establish that defendant, when he made the representations, knew them to be untrue.

The rule as to pleading and proof in actions for deceit has been tersely stated to be that the plaintiff must allege with reasonable certainty and be prepared to prove: (1) That the defendant made some representation to the plaintiff meaning that she should act upon it; (2) that such representation was false, and that the defendant, when be made it, knew it to be false; (3) and that the plaintiff, believing such representation to be true, acted upon it and was thereby injured. Kosobucki v. McGarry, 104 N. J. Law, 65, 139 A. 31. This may be amplified by adding that the falsity may consist in making a representation of a material fact knowing it to be false, or in making a representation which is untrue without knowledge whether it is true or false and by coupling with the representation an express or implied affirmation that it is known to be true of personal knowledge. Crosby v. Wells, 73 N. J. Law, 790, 801, 67 A. 295; Cummings v. Cass, 52 N. J. Law, 77, 18 A. 972; Thompson v. Koewing, 79 N. J. Law, 246, 75 A. 752.

The representations laid against the defendant were made. They were material and were made with the intention that they should be acted upon. They were false. They were believed by the plaintiff and were acted upon by her to her very considerable financial loss. There was no express affirmation by the defendant that he had personal knowledge. The issue before us is whether the proofs were sufficient to go to the jury on either the question of implied affirmation of personal knowledge or on the question of actual knowledge of falsity.

The evidence is persuasive of shifty business methods on the part of the defendant and contains enough, we think, to present a jury question. Friedberg held himself out as conducting a high-grade and long-established art gallery— the oldest on the boardwalk. Plaintiff was induced to enter the place of business. Defendant was engaged in auctioning off various articles. The plaintiff testifies: "Well, he was on the block there and I sat over here, and he got down. He had been selling some things, I don't remember what, nothing that particularly interested me, and he went back, and then he shortly came forward very much excited. He had something wonderful to sell. * * * He was excited about these wonderful things he had to put up. * * * Here was a wonderful Gainsborough and here was a wonderful Reynolds, genuine, of course. No doubt about that. And that is why I bought them, because they were genuine. * * * Well, he said be had another and finer painting, a great artist, and so forth, and then this Romney was brought out from the rear of the store." The defendant then asserted that that was a genuine Romney, and the plaintiff, believing, paid $18,000 for that picture. The cost of the picture to the defendant, according to his testimony, was $3,500. The plaintiff received formal documents purporting to be signed by Boardwalk Art Gallerie, Inc., not then in existence, which was one of the names under which the business appears to have...