Standard Oil Co. v. Amazon Insurance

21 N.Y. Sup. Ct. 619

• Court: New York Supreme Court
• Decided: September 15, 1878
• Status: Published

Opinions

Gilbert, J.:

The jury, no doubt, were of opinion that the representation made by James Lord was an expression of opinion only, and not a positive statement of fact. The judge’s charge on that point was clear and explicit. The jury were plainly told that the case depended on the question, whether James Lord, the plaintiff's agent, stated absolutely as a fact- to Peck, the defendant’s agent, that the policy of the Triumph Company had been approved by that company. The defendant acquiesced in that instruction.

I agree with the defendant’s counsel, that if the statement made by Lord was a positive one, the defendant was entitled to the verdict. Notice to the agent is notice to the principal; and whether the notice be actual or constructive, the same kind of notice will be attributed to the principal, whether actually communicated or not. Such a case would be one where a principal had sent his agent to cheat. But I do not agree with him, that because Lord merely expressed an honest opinion that the Triumph policy had been approved, when, in point of fact, it had' not, and the plaintiffs knew that it had not, the latter are liable on the ground of fraud. For, in such a transaction, in the absence of evidence that the plaintiff permitted the representation to be made for a fraudulent purpose, the intent to deceive, which is an essential ingredient of fraud, is lacking. In other words, fraud cannot arise out of such a representation by an agent, when neither the' agent nor the principal had any intent to deceive; and when the statement consists of an expression of opinion merely, an inference of fraudulent intent is not warranted without other evidence thereof. If the statement which Lord made had been made directly by the plaintiffs, under circumstances showing the absence of any intent to deceive, fraud could not have been legally imputed to them. There being no fraud in such a transaction between an agent of the plaintiffs and the defendant, the plaintiffs may, of course, claim the benefits of it without incur-' ring any liability.

Such being my views of the law, it only remains to consider whether the statement made by Lord was a positive one or not. Upon that subject, X think the testimony of Mr.'Peck'alone, is sufficient to warrant a verdict that it was not. He testified that Mr. Lord “ said the policy had been submitted, as there had been abundance of time for submission of the policy; and that the policy had not been canceled; and, therefore, the Triumph Company had approved the policy.” That may be bad reasoning; but, if honestly uttered, it furnishes no sufficient basis for an imputation of fraud. Fraud could hardly be predicated of the-previous statement which Peck’s subordinate (Fox) testified that Lord made to him; for the statement to Peck himself, being the last one, may well be treated as having superseded that made to Fox. But, if otherwise, Lord’s testimony was in conflict with that of Fox, and it was the exclusive province of the jury to decide which of them was most worthy of belief.

The judgment and order denying a new trial should bo affirmed.