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National Protective Assn. v. Cummings, et al.

Cumming, as an officer of the defendant association, the association itself, nor the individual members of the association committed an illegal act for which it or they were liable for damages, of from the performance of which they should be enjoined, by stating to employers of labor that members of that association would refuse to work or would leave work if other than their members were employed. We have also evidence of threats made by Cumming and other representatives of this defendant association to the plaintiff that they would not allow the individual plaintiff or members of the plaintiff corporation to work in New York City unless they became members of the defendant association.

Undoubtedly it would have been illegal for Cumming to attempt to prevent the individual plaintiff or others from obtaining work without joining his association. If that had been the purpose, and if that purpose had been accomplished, the plaintiff would have had a cause of action against those united in its accomplishment; but a fair consideration of this testimony, I think, shows that there was no combination to prevent the individual plaintiff or the other members of the plaintiff corporation from obtaining work, nor was that the object sought to be accomplished except so far as was necessary to procure and retain work for members of this defendant association. The members of this association had a right to obtain work if possible, although it resulted in leaving the plaintiff and the members of the plaintiff corporation without work. They had a right to insist upon the superior attainments of the members of their association, and that its members were better workmen than the members of the plaintiff corporation, and that, therefore, they should be preferred; and as long as their acts tended merely to obtain employment for themselves, even though it was at the expense of the plaintiff and his associates, no legal wrong was committed. Yet this is all that I can see after a careful examination of this

Jackson v. Foley.

testimony that these defendants did. They insisted that their men should be employed; stated that their men would not work with the individual plaintiff or members of the plaintiff corporation, and that unless the members of the plaintiff corporation were discharged their men would leave work. That, I believe, the defendants had a perfect right to insist on. In doing so they committed no illegal act, and the court below was not justified in enjoining them from continuing to do that which they had a legal right to do.

I concur in the reversal of the judgment.
MCLAUGHLIN and HATCH, JJ., concur.




Rescission of purchase of business: Judgment annulling contract of sale, canceling mortgage given in part payment and for personal recovery against person receiv

ing cash payment.

Where parties to a contract of purchase and sale do not stand upon an equal footing, and the purchaser must to some extent rely apor the opinion of the seller in determining whether he will purchase, statements made with a view of influencing and which do influence the purchaser, become statements of fact, and if they are false and are intended to defraud the purchaser, he may recover damages from the seller. Such rule applied where it appeared that certain misrepresentations of value as well as untrue representations of actual fact had been made, to the end of rescinding a contract of purchase and sale entered into upon the faith of such representations, can

Jackson v. Foley.

celing a mortgage given in part payment and granting personal judgment against a party who had received a cash payment. A delay of some months in making the rescission, Held not to have forfeited the purchaser's right to rescind under the facts as they appeared.

(Decided July, 1900.)

Appeal from judgment entered upon decision of court at Special Term.

Samuel Greenbaum for appellants.

Herbert L. May for respondent.

RUMSEY, J.--On the 15th of August, 1898, the defendant John Foley sold to the plaintiff his gold pen manufacturing business with all the rights, privileges and good will appertaining thereto, including the trade-mark and all the stock of goods, materials, machinery, showcases and fixtures of every kind appertaining to the business. The consideration for the sale was $4,000 paid in cash, and an agreement to pay $11,000 out of the profits of the business at specified times. The interest on the $11,000 was to be paid quarterly, irrespective of the fact whether there were profits or not. This deferred payment was secured by a mortgage upon the property sold, given by the plaintiff to the defendant Elma Foley. The plaintiff took possession under his contract on the 24th of August, 1898. He continued in possession until the latter part of January, 1899, when he rescinded the contract, tendered back to Foley all he had received, and demanded that the mortgage be canceled, and that Foley should pay back to him the $4,000 he had paid. This demand being refused, the plaintiff brought this action, offering to deliver up all that he had received under the contract, and asking judgment that the mortgage to Elma Foley be canceled and discharged, that the contract be annulled, and that the de

Jackson v. Foley.

was ob

fendants be compelled to pay back the money paid on the purchase price. The ground upon which this relief is sought is that the plaintiff was induced to make the purchase by false and fraudulent statements as to the quantity and value and nature of the stock and machinery that were transferred, and other false representations which were made by Foley to the plaintiff and his agent with the purpose of misleading him and inducing him to enter into the contract. The learned justice at the Special Term found that the representations were made substantially as stated by the plaintiff; that they were false and made with intent to deceive, and he directed judgment to be entered canceling the mortgage and requiring the defendants to pay back the money which had been received from the plaintiff. From this judgment this appeal is taken. The complaint as originally served contained very general allegations as to the false representations, and upon the trial, when it was attempted to prove them, it jected that they had not been properly pleaded. Application was then made to amend the complaint, which, although opposed by the defendants, was granted, and the pleadings were thereupon amended by setting out the representations which the plaintiff claimed had been made and their falsity. It is obpected that this ruling of the court was erroneous. This was clearly one of the amendments authorized by section 723 of the Code of Civil Procedure, and its granting is very largely in the discretion of the court to whom the application is made, and unless it appears that injustice was done by allowing the amendment the act should not be reversed in the appellate court. We cannot see that any injustice was done to the defendants by permitting this amendment to be made, although it was stated, when it was suggested that such an application would be made, that the defendants could not meet the evidence. But it is quite apparent, from an examination of the record, that the defendants were able to introduce testimony bearing upon every fact set up in the amended

Jackson v. Foley.

complaint, and they made no application for a postponement, as they should have done had they been surprised by the amendment, so as to be unable to meet the plaintiff's case. There is no reason, therefore, why the judg ment should be overthrown because of that amendment.

Upon the question of fact presented there was a serious. conflict of testimony. But the learned justice of the Special Term having seen the witnesses and observed their manner of giving testimony, we do not feel at liberty to say that his conclusions were not correct, especially as there was ample evidence to sustain them; and in the further consideration of this case we shall assume that the allegations of the plaintiff as to the representations and their falsity were established, and confine ourselves to a consideration of the legal question presented.

It appears from the testimony that the negotiations leading up to the contracts were had between the plaintiff and his father on the one hand and the defendant John Foley and his wife, Elma, on the other, Mrs. Foley being present, but taking no important part in the negotiations. Their attention was called to the fact that the property was for sale by an advertisement which is found in the case, and which stated that the business was of "great merit, the articles patented, long established, the average profits over $15,000," and describes the property to be sold as consisting of a valuable business, with stock, fixtures, factory, handsome Broadway establishment complete, with use of the owner's name. Upon seeing this advertisement the father of the plaintiff went to Foley and made inquiries with respect to the property to be sold. His testimony is that both he and his son, the plaintiff, were absolutely ignorant of the nature and value of the business or property and relied solely upon what Foley told to him. Foley said he wanted to sell his gold pen business and everything appertaining to it; that the business was very valuable; that he had made $15,000 a year on the average; that he was selling out simply because of

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