Opinion
February, 1929.
Judgment reversed upon the law and the facts and new trial granted, costs to appellant to abide the event. The findings of the trial court, made at appellant's request, are to the effect that defendant Shiverick and defendant Betrang Construction Corporation were guilty of fraud in procuring the subordination agreement. Judgment, however, was granted plaintiff, apparently on the ground that it was not a party to the fraud so found. However, the trial court found, at appellant's request, by the tenth proposed finding of fact, that the services of defendant Shiverick in negotiating the building loan agreement, in procuring the building loan bond and mortgage and in procuring the subordination agreement from the appellant Grosch, were rendered by Shiverick to plaintiff, and plaintiff paid him $2,500 for such services. If Shiverick acted as agent for plaintiff in procuring the subordination agreement by fraudulent representations, then plaintiff is responsible for his acts in this respect. But the court also refused to find that Shiverick was plaintiff's agent in making the false representations. Appellant was not permitted to examine some of his witnesses as fully as might be desired. The record discloses that the judgment is contrary to findings made at appellant's request, and there is some evidence to support such findings. We think, in the interest of justice, there should be a new and careful trial of the issues presented. If it should appear upon the trial that plaintiff was a party to the fraud found by the trial justice in this case, or that it accepted the fruits thereof, a good defense would be established. Lazansky, P.J., Young, Seeger, Carswell and Scudder, JJ., concur.