Young & Otis v. Covell

8 Johns. 23

• Court: New York Supreme Court
• Decided: May 15, 1811
• Status: Published

Opinion

Per Curiam.

It is well settled that this action cannot be sustained without proving actual fraud in the defendant, or an intention to deceive the plaintiff, by false representations. The simple fact of misrepresentation, unconnected with a fraudulent design, is not sufficient. The evidence produced.by the plaintiffs at the trial did not ma-le out the fraud, or show enough to justify the jury in drawing that conclusion. The defendant made no suppression of facts within his knowledge. He stated correctly the circumstances of the connections of Davis in Rhode-Island. He lived on friendly terms with the plaintiffs; he gave them prompt and seasonable notice of his subsequent opinion of the insolvency of Davis; and it did not appear that he bad any connection with Davis, or that he came and voluntarily recommended, him to the plaintiffs. The advice was rash and indiscreet ; but there is no ground from which to infer that it Was deceitful. Deceit is the gist of the action. If the cause had gone to the jury, the testimony would not have warranted a verdict for the plaintiffs, and the motion to, set aside the nonsuit ought therefore to be denied.

Motion denied.

(a)

See Ward v. Center, 3 Johns. Rep. 271. Upton v. Vail, (6 Johns. Reps. 131.) 3 Term Rep. 51. 2 East, 92. 3 Bos. & Pull. 367.