Opinion
January 6, 1909.
J.J. McGuire, for the appellant.
James L. Baker, for the respondent.
The grounds on which the learned county judge disposed of this case, as appears in the opinion rendered by him upon reversing the judgment of the justice, were that the plaintiff did not return or offer to return the seven dollars received from the defendant, prior to the commencement of the action, and that the justice erred in a ruling on the admission of evidence.
The ordinary rule undoubtedly is that where a party seeks to rescind a contract on the ground of fraud, he must tender a return of what he has received under it before he can maintain an action at law. But that is not this case. The plaintiff does not claim that he was induced by fraud to make a contract with the defendant, nor does he seek to rescind or avoid a contract obtained by fraud, but to recover the value of property obtained by fraud. The claim of the plaintiff is that he did not assent to a sale to the defendant, and that the agreement with him was a nullity.
The important and material allegation of the complaint is that the defendant secured possession of the property in question by artifice and fraud, and converted it to his own use, and we must assume that the justice so found.
This case is, therefore, not within the rule laid down in Gould v. Cayuga County Nat. Bank ( 86 N.Y. 75) and kindred cases, cited by the learned county judge in support of his position. It is an action for the wrongful conversion of property obtained from the owner by fraud. The wrongdoer in such a case is not entitled to a return of the amount paid by him to effectuate his fraud and obtain possession of the property. The law cares very little what a fraudulent party's loss may be, and exacts nothing for his sake. ( Masson v. Bovet, 1 Den. 74.)
It is to be observed also that there is an exception to this rule where the party defrauded is entitled, in any event, to all that he has received.
In such a case a return or offer to return is not a condition precedent to the bringing of an action. ( Hay v. Hay, 13 Hun, 315; Remington Co. v. London Assurance Corp., 12 App. Div. 218; Pritz v. Jones, 117 id. 657; Kley v. Healy, 127 N.Y. 555. ) It is sufficient if the sum retained is taken into account and allowed in the judgment. That is all the party defrauded should do and all that honesty and fair dealing require of him. If, therefore, the plaintiff had admitted a contract with the defendant and claimed that he was induced to make it by fraudulent representations as to the value, nature or character of the consideration by him, he would not have been bound to return the amount received before he could proceed in disaffirmance of the contract.
I am also of the opinion that no error was committed in excluding evidence tending to show that the defendant purchased the buckwheat in good faith. The question of good faith was not involved. "A wrongful intent is not an essential element of the conversion. It is sufficient if the owner has been deprived of his property by the act of another assuming an unauthorized dominion and control over it." ( Laverty v. Snethen, 68 N.Y. 527; Boyce v. Brockway, 31 id. 490.) The fact that the plaintiff had given evidence of contemporaneous representation and purchases did not make the evidence offered material, for we must assume that the evidence of transaction, with "others — neighbors of plaintiff," was offered and properly received upon the issue tendered by the allegation of the defendant "that all buckwheat bought by him of plaintiff was bought by defendant for himself, the same as he had bought of others — neighbors of plaintiff." I am, therefore, constrained to believe that no substantial error was committed in the Justice's Court, and that the judgment of the County Court should be reversed, with costs in this and in the County Court, and that of the justice affirmed.
All concurred.
Judgment of the County Court reversed, with costs in this and in the County Court, and that of the justice affirmed.