Vail v. Reynolds

• Decision Date: 14 January 1890
• Citation: 23 N.E. 301,118 N.Y. 297
• Parties: VAIL v. REYNOLDS.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 297

23 N.E. 301

VAIL

v.REYNOLDS.¹

Court of Appeals of New York,

Second Division.

Jan. 14, 1890.

Appeal from supreme court, general term, first department.

Wm. B. Hornblower and J. Treadwell Richards, for appellant.

William W. Goodrich, for respondent.

BROWN, J.

The plaintiff sued the defendant to recover damages sustained by fraudulent representations inducing the purchase of stock of the Cisco Consolidated Gold Mining Company, and had a judgment in her favor, which has been affirmed at the general term. We think there was ample testimony to justify the submission of the case to the jury, and the exception to the denial of the motion to dismiss the complaint need not be further alluded to. The principal question on this appeal arises upon an exception to the charge upon the measure of damages.

The learned trial judge very fully and carefully instructed the jury as to the particular facts necessary to be proven to establish the defendant's liability, and further instructed them that, if such facts were established to their satisfaction, the plaintiff was entitled to a verdict for the amount of money which she had paid out for the stock in question, which sum was stated to the jury to be $18,000, to which the jury were permitted to add interest ‘by way of damages.’ The counsel for the defendant excepted to this instruction, as follows: ‘I except to the instruction that if the plaintiff is entitled to recover she is entitled to recover the amount paid by her on the purchase of the stock, whether that purchase be intended to include or exclude interest.’ It is claimed by the respondent that this exception was not sufficient to bring up for review the ruling of the court on the measure of damages, for the reason that it was based on the assumption of the fact that the stock was worthless, and that, if the appellant had desired to have the question of its value submitted to the jury, he should have made a specific request to that effect. The rule invoked by the appellant is of frequent application when a party, by a motion for a nonsuit or for a direction of a verdict, assumes certain facts to be undisputed, and rests his case on propositions of law, and thus impliedly waives his right to go to the jury. Winchell v. Hicks, 18 N. Y. 558;O'Neill v. James, 43 N. Y. 84. But we think it has no application to the case at bar.

The defendant had assumed no position in the case and had done no act from which the court could have assumed that he waived his right to have all the disputed facts in the case submitted to the jury, and if the court erroneously assumed that the facts as to the value of the stock were not in dispute, and laid down a rule for the guidance of the jury based upon such erroneous view of the evidence, the question of error in presented under the general exception to that part of the charge, and it was not necessary to particularly request the judge to reconsider his decision, and submit the question of value to the jury. In effect, the charge was a direction of a verdict for the amount paid for the stock, provided the jury found the facts necessary to create liability; and the rule is now well established that, when the court directs a verdict, an exception to the ruling of the judge, in the absence of anything from which it may be implied that the right to go to the jury has been waived, is sufficient to present the objection, on appeal, that there were questions of fact for the jury, and it is not necessary to request that every fact be so submitted Trustees v. Kirk, 68 N. Y. 459;Bank v. Dana, 79 N. Y. 108-116;Stone v. Flower, 47 N. Y. 566.

The only thing that occurred during the trial that it is claimed amounted to a waiver of all questions of fact relating to the value of the stock was a conversation between the counsel for the parties at the close of the plaintiff's case. This amounted to no more than an inquiry by defendant's counsel as to the amount claimed by the plaintiff, and a reply giving the amount in substantially the language of the complaint. There was certainly nothing in this to create the impression that the defendant agreed to the amount named, and the court did not adopt it in the charge to the jury, as it materially reduced the figures then named, and it was followed by proof on defendant's part to the effect that the stock had some value.

We think the exception to the charge was well taken. The action was plainly one for deceit, and the measure of damages in cases of that character is full indemnity for the loss sustained. The representations inducing the purchase, being false in fact, must be made good in their pecuniary consequences. Accordingly the party defrauded is entitled to be made pecuniarily as well off as if the representations had been true, and this is accomplished by allowing to him as damages a sum of money equal to the difference between the value of the property as it was in fact and the value as it would have been if the representation had been true. Krumm v. Beach, 96 N. Y. 398-406;Whitney v. Allaire, 1 N. Y. 305. While not denying that the rule laid down by the trial court, in its general application to cases of deceit, was erroneous, the respondent claims it was correct in this case, for the reasons- First, that the stock was shown to be worthless; and, second, it was offered back to the defendant on the trial. There was evidence given on the part of the plaintiff...