The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-03-08
Sup<rsor CourS-Pays second.
be ore Hon. Judge Slosson.
sREAr MERcASrtLE SUIT

Hm. M nun us Nsrsaea D. Rotits.-This Is q
Won to r about go o0o which pisnhf alleges 90
have IL the safe OF the steamboat Columbus through
mt formation or wi Embedding aation by the DO
endant The JlafptiS owned six twenteths OF the Co
lunbus which was employed in Trading and carrying
rassen,cra on The Pacific Ocean. The defendant Was
.rent for her owners and, il is alleged, withheld from
la;r.ia correct statement OF her earnings which
duoed tho plaintiff par. With his intersSt in her for
s22 coo and share OF her earnings for $l3 co., which
-, oousderssly below its valne it bing alleged that
George Law and Others who assumed owners of the
vessel had prior to Tie plaintiff having parted with his
share OF her agreed TO sell her for $40 00e.
The case occupied the Court weeks. The tes-
1sznony voiumirous. Counsel for defendant moved
o. a suit. Judge slosson granted the motion.
sIosos Jdstice-This action only be treated an
aston law, for the recovery unliq damages
alleged fraud prsctsed by the defendant upon
plaintiff, in the purchase by the former OF the latters
nterest-drs in the profits and second in the ship it.
self The two subjects, though forming part of the
Transaction, still distinct. They treated dis
fnct by the plaintiff in his complaint; they the
subjects distinct transfers. though consmporaneous In
date and subject IN respects, to the apph,a
cation direns rules principles of law The founds
Of the FRAUD Of the action ITSELF is laid by the
in the relation which subssted between the pa.
the lime OF the purchase, az whch is alleged
the part of plaintiff to have bee Of that strictly hdu
diary character which imposed the defendant the OBJ
Ms principal the plaintiff the cordion and state Of the
chips and earnings, any fact contested with
but to actually disclose all such m.tters, that, in
trtay Of purchase between them, the latter shou
stand IN r'spe't 70 knowledge rs and information,
pute, and be none, to the extent of this
Obligation of disclosure and good faith where the exist
Of the confidential relsuon is established;
but to maintain aston at law for fraudulent impo
sition in the matter Of purchase sale it is not
sary such confidential relation between the per-
should q
who previously stranger If BY alse represent
tatiops he Induces the plaintiff 70 buy himself
to another and that where the plain i'll afirms
ale bsygain Paisley vs. Freeman, |. r., 81. Whit
sey Alaire DEMO 55i.) The importance of esao
Eshrg such cucisry relation consists IN the presume
ton which it raises advantage has bean gained
Of aud The part o. the person sustaining the rela
6on But this pIesum ption acd the consequent shift
ing Of the of proof does arise law
only be awaited of by the party by resort to
the equitable jurisdiction If the court. Still not
wi say that at law he establishment OF this
relation does give 70 the plaintiff the benefit Of
srcer rule OF Obligation to disclosure or the part OF
The cefsnoant than would ctho- wise exist, and which
would let in evidence of anent suppressi
well 81 q direct and positive false TONS and such
for II purposes Of this motion shall consider the Law
to be- But beyond this the plaintiff in this action de-
Tives cenetJ from The existence of shis confidential
relation The Court may be content with amount
CT positive proof may aoit wider range of proof
to the character Of the fraud, as by permitting
oeaiment and suppression 10 be shown but the
frmative,y, and be only recover such damages
no satisfy the jury he has actually sustained
ID
DO avoid unconecientious bargain made by party
Standing r fduciary relston to the plaintiff. In such
relation Itself and the bargain and advantage gained
Fraud the part Of the defendant is at presumed
from the Eelaon-hp Of the pAries which it never At
The defendant to the by proof good
faith and ull disclosure his part Moreover, the
lief is different In he action At law damages only can
be given-the action sounds in damages-t in les
lure acton for y .or-but in the suit in equity the
court sets aside the itself and if the
IL I
its equi able control it will make compensation to the
plaintiff and possible him his original
rights. Were the present action of this nature
this court acting Court of Equity and without the
intervention jury woulc upon proof OF the hdncary
relation and proof Of larger profits realized by the de-
PENDANT than the amount which he paid the plaintiff ut
Put it to the cefendans conscience 10 explain and
clear the transaction by proof his part that be had
acted with the very faith towards the plaintiff and
not only di not cea from hut fully disclosed him
everything that he himself knew in regard to the
probabilities Of profits well all that affected the
value OF the vessel that they actually dealt equal
terms and he failed in this then il question exist
ed TO the actual unit of superior profits realized
the defendant il would order referee and when the
amount ascertaned would rescnd the SALE which
IL the thing would give the to the plaintiff
Thn is what jury could do at least could not do
unless under special instructions to the rule
for the difference between the amount realized by him
the purchase of the profits only be given tue
theory OF rescsson OF the contract ITSELF whereas the
jury have only With question OF unq Undated
damages the basis Of disturbing the contract
but compenrAtpg the plaintiff for what he has actually
suffered by the fraud BY the fact Of the bar
asking for such, has claimed the exact diff
ference between the amount given the amount al
legged TO have been realized by the defendant the
chase from him of both subjects, 1.-THE vessel the
profits without asking that the sae may be set aside
The between the legal and eTui.abe character
OF the remedy have beer confounded and this
has given TO some In the progress OF
the trial; but do not consider this circumstance
changing The character OF the action converting it
into Of equitable nature. Fit the latter this
Is clearly not the tribunal before which to try IT, The
DANA
generally without affecting the nature Of the
self have been thus particular in explaining my
Of the nature OF this action it is important in deter
mining the present motion TO have correct apprehenns
that subject. The more appropriate remedy in this
would have been ac4ion in the nature OF bill in
equity to se aside the sale for compensation; but
the plaintiff has ut to bring his before jury
which the right to do he must stand fall by his
action action at law. As such. il is action ia
the Of action in the case founded upon
the deceit fraudulent npoon Of the &c endant, and
the question presented is whether the plaintiff has
made such Affirmative proof of the aedgei fraudulent
representations BY the defendant. the alleged faudu
lent ccuceaInent by him OF matters material be known
TO the plaintiff, affecting the sale in question, will
Justify me in Withdrawing the rom the jury and
determining the question shall be governed py the
only test Of such molten to wlt:-whether . verdict
could be sustained upon the evidence II stands II
of the last Importance in determining the effect OF this
evidence to advert TO the which govern the proc,
in actions OF this nature And first as has already been
consists false aiirmetons, the ahirmaons must be
proved and their iasy and II must be shown that the
defendant knew them TO be false for if be acted in good
Whether tie evidence amounts TO proof OF such
ledge Of be left TO the jury Il the is in
other respects proper to go to them II the fraud con-
ss of the suppression Of facts the existence OF the
facts be shown and the defendants knowledge OF
them and Some affirmative evidence OF the defendants
concealment of those facts from the plaintiff Again,
the plaintiff must give such Affirmative evidence OF facts
will justify the jury IN believing that the defendant
nded to deceive the plaintiff and further he must
show that be actually deceived. II the plaintiff
knew that the representations false and made the
bargain with his eyes open he has redress So IL he
had the of ascertainng the truth and might have
done but neglected to do H. be cannot recover Last
ly, he must show actual damage resulting from the mis-
representation. When all these elements unite and
PTid dce is made, II is proper for the jury
To test the evidence by these rules. First to the
profits. lbe allegation is, that by the defendants mis-
representation and ceaent in respect Inc
the plaintiff induced 10 sell his share OF the earnings
for $4,000, when in fact 1t worth $27 900 For
proof that there this difference the plaintiff relies
the statement furnished by defendant TO Charc make
the accounts B) and Charlicks account itself lc)