New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1856-03-08
Ia " INI'ELLIGEIVCE.
SUPERIOR COURT-PART IlD-MsIeh 7-Beiore the Hon
Judge SLOssoN.
GREAT MERCANTILE SUR.

GREAT MERCANTILE SUI.
VIM Hickman Marshall o. Roberts
Tbis is an action to ,ver about $50, 900, whica
pan seges to have lost in the sale OF the steamboat Cou
the defendant The plaintiff owned sI-twentehs OF the Co
which employed trading and carrying
the Pacific Ocean The defendant agent for her
and il is ale ed withheld from plaintiff correct statement of
her earnings which induced the plaintiff TO part with his inter
Which considerably below its value it being alleged that
George Law and others who assumed to be of the
sell had prior TO the plaintiff having parted with bis share of
her, esreed TO sell her for Sln,00
The case occupied the weeks The testimony
youmnous Counsel for defendant moved for nonsuit
The opinion Of the Court is long aud elaborate We subon
This action can only be treated as an action at law for the
recovery Of uuquidaed DAMAGE for alleged fraud
by the defendant the plaintiff in the purchase by the
in the shpitsef The subjects though forming part the
transaction still distinct They treated distinct
transfers though cotempoaneous in date and sub
ject in respects TO the application Of different rules or
principles Of law The foundation Of the fraud and of the
itself is laid by the plaintiff in the relation which sub
sisted between the parties the ne Of the purchase and
strictly fduciary character which imposed the defend
ant the obssGn not only to conceal from or mspsseas
the ships accounts snd earnings fact connected with
but 10 actually disclose all such mattets, that, in
treaty OF purchase between them, the latter should
stand respect knowledge and information in the shoes Of
the former There Is no dispute and can he none as to the ex
of this obligation OF disclosure and good faith where the
of the confidential relation established but
maintain al action Of law iof fraudulent imposition IN the
matter Of purchase or sale s not necessary that such con
will be asansi party who previously more stranger
by false representations he induces plaintiff
70 himself TO another and that where the plaintiff AZ
firms the baTeair tfsisley vs. Freeman, l. k 81 Whit
AllaiTe DEMO 5) The importance Of establishing
tducsry relation consists in the presumption which
where advantage has been gained oraud the
of the rerson sustaining the relation But this presuptoa
the consequent shifting OF the burden Of proof does
arise and only be sysed by the injured party by
70 the equitable Jurisdiction OF the court Still an no.
willing TO say that law the establishment Of This rel
does not give the plaintiff the benefit OF ster rule
ef ohgston as TO disclosure on me part Of tue Dc,
frdaut thar would Otherwise exist, and which would
l,t in evidence Of conc salInont suppression.
well Of direct positive false asserons aud such Tor the
Iur ss Of this motion shall consider the law 70 be- But be-
Of this confident relAton Tue Court be
tent with Of positive proof sdnit wide:
rsnee proof the character Of the fs1d BY permit
and suppression 10 be shown but the pAn1
till Obliged the fraud srmaYely and be only
such he satisfy the JuJ be has actually
The widely different where bill Ia HE'D IN
stsnons in fiueiary relation TO the plaintiff In sach
al action the plaintiff rest his case on PROOF OF tne
relation itself. and the bargain and advantage gained
fraud on the defendant is AZ once presumed
from the Relationship the parties which is a.
law Cowen. Sl0l The burden 10 then thrown on the
deisndan TO sustain the transaction. by proof OF gooi
different In the Ston law damages only be gventhe
soon sounds IN dsmsgests in is seton for tort
put "a NE SUIT N equity The court sets aside the sale itself AID
H. by the Intervention OF third parties subject removed
beyond 10 equitable control IL will the
Plaintiff and far possible him gns rghtA
" ere the present action Of this acting
Court Of Equity and without the intervention of jury
would uron proof he hdueary relation ard proof OF lager
profits realized BY the defendant than the which
plain and clear the transaction BY proof his part he
al acted with the best faith toward plaintiff
only did conceal from but fully disclosed him
that himself knew in regard 10 the amount probsbes
Of Profits as well all that affected the value OF the
vessel so that they actually dealt on equal
terms and IL he failed this then question existed