Mix v. Charles P. Boland Co.

153 A.D. 435, 138 N.Y.S. 361

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1912
• Status: Published

Opinions

Kellogg, J.:

The complaint alleged that the plaintiff entered into a contract with the defendant to cut "and furnish the limestone to be used in the construction of certain buildings belonging to the Emma Willard School, and pursuant thereto cut and delivered for that purpose 15,000 square feet for $8,388, whitih indicates a price of about fifty-six cents per foot. That before said contract was made the plaintiff and the Emma Willard School had entered into an agreement by which the plaintiff was to furnish it said limestone at one dollar per square foot, and that the defendant had knowledge of such agreement, and falsely and fraudulently stated and represented to the plaintiff that the architects of the school would not consent or agree that more than sixty cents per square foot should be paid for such stone. That such statements were false and fraudulent, and known by the defendant at the time so to be, and were made with the intent and purpose to deceive and defraud the plaintiff by inducing the plaintiff to agree to furnish said stone for the defendant at a less price than one dollar. That relying on said false statements, and believing them to be true, the plaintiff was induced to and did enter into said contract with the defendant, and furnished the stone for said school pursuant to the said contract with the defendant, to his damage of $6,612.

If the defendant made the false representations with the intent that the plaintiff should abandon his contract with the school, and furnish the stone for the defendant at a lower price, defendant cannot well claim that its representations did not naturally tend to bring about the result intended and accomplished. Evidently the school required the stone to be furnished but once, and when the plaintiff furnished it to the defendant for the school he thereby waived the right to furnish such stone under his contract with the school. That was evidently the intention of the defendant in making the representation. The plaintiff accepted the defendant’s statement, not choosing to enter into any controversy with the school or its architects. It now appears that the school and the architects raised no objection to carrying out the contract with the plaintiff, and that the plaintiff has lost the benefit of that contract solely through the false representations of the defendant.

The plaintiff upon this motion is entitled to a fair and liberal interpretation of his complaint, which is deemed to allege everything fairly foreshadowed by its allegations.

It reasonably follows from the allegations that the representations deprived the plaintiff of the benefit of the favorable contract which he had made with the school.

The order appealed from should, therefore, be reversed, with costs to the appellant, and the motion for judgment upon the pleadings should be denied, with ten dollars costs to the plaintiff.

All concurred, except Smith, P. J., dissenting in opinion.