Henry W. Boettger Silk Finishing Co. v. Electrical Audit & Rebate Co.

Appellate Terms of the Supreme Court of New York

Henry W. Boettger Silk Finishing Co. v. Electrical Audit & Rebate Co.

115 N.Y.S. 1102

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 8, 1909

StatusPublished

This text of 115 N.Y.S. 1102 (Henry W. Boettger Silk Finishing Co. v. Electrical Audit & Rebate Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Henry W. Boettger Silk Finishing Co. v. Electrical Audit & Rebate Co., 115 N.Y.S. 1102 (N.Y. Ct. App. 1909).

Pincite

Opinion

SEABURY, J.

The plaintiff has recovered a judgment against the defendant, although neither the complaint nor the evidence stated a cause of action against the defendant. The complaint attempts to state a cause of action for damages for fraud.

It is alleged that the defendant represented that it “could and would” procure the charges which the plaintiff, paid for electric current to be cut in half, and that it “could and would” recover for plaintiff rebates of at least one-half of all bills that plaintiff had paid for electricity during the year last past. These representations were not statements of existing facts, and were not of themselves actionable. The [1103]*1103fact that the defendant may have broken its promise may have justified an action for breach of contract, but did not furnish the basis of an action predicated upon fraud.

The court below in its charge submitted both the issues of breach of contract and of fraud to the jury, and charged that, if there had been a breach of contract, the plaintiff could recover. Subsequently the court modified this part of its charge, and instructed the jury that the plaintiff could only recover upon the theory of fraud. In the contract under which the plaintiff paid the $100, which it seeks to recover in this action, the defendant agreed to—

“obtain the cheapest contract for an electric current, also test our meters, and examine motors, whenever necessary, and audit our bills for one year from date, * * * and guarantee to obtain rebates on all overcharged bills to date.”

The judgment recovered is without any legal foundation, and must be reversed.

Judgment reversed, with costs, and complaint dismissed, without prejudice to a new action. All concur.

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SEABURY, J.

The plaintiff has recovered a judgment against the defendant, although neither the complaint nor the evidence stated a cause of action against the defendant. The complaint attempts to state a cause of action for damages for fraud.

It is alleged that the defendant represented that it “could and would” procure the charges which the plaintiff, paid for electric current to be cut in half, and that it “could and would” recover for plaintiff rebates of at least one-half of all bills that plaintiff had paid for electricity during the year last past. These representations were not statements of existing facts, and were not of themselves actionable. The [1103]*1103fact that the defendant may have broken its promise may have justified an action for breach of contract, but did not furnish the basis of an action predicated upon fraud.

The court below in its charge submitted both the issues of breach of contract and of fraud to the jury, and charged that, if there had been a breach of contract, the plaintiff could recover. Subsequently the court modified this part of its charge, and instructed the jury that the plaintiff could only recover upon the theory of fraud. In the contract under which the plaintiff paid the $100, which it seeks to recover in this action, the defendant agreed to—

“obtain the cheapest contract for an electric current, also test our meters, and examine motors, whenever necessary, and audit our bills for one year from date, * * * and guarantee to obtain rebates on all overcharged bills to date.”

The judgment recovered is without any legal foundation, and must be reversed.

Judgment reversed, with costs, and complaint dismissed, without prejudice to a new action. All concur.

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Bluebook (online)

115 N.Y.S. 1102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-w-boettger-silk-finishing-co-v-electrical-audit-rebate-co-nyappterm-1909.