Cramer v. Wright

Perkins, J.

Suit to recover damages produced by false representations as to the character of land sold. The purchase of the land was made by an agent of the plaintiff, and the representations were made to him. The agent assigned *279 his interest in the cause of action to his principal, the plaintiff.

Alexander McDonald, J. E. McDonald and A. L. Roache, for appellants. James Morrison and C. A. Ray, for appellee.

(1) In support of the proposition that all false representations made by vendors, knowing them to be untrue, as to the location, quality, or productiveness of the land sold, will entitle the purchaser to his action for the damages resulting from the fraud, counsel for the appellee cited the following authorities : Scdg. on Measure of Dam. 561; Lamerson v. Marvin, 8 Barb. S. C. R. 9; Whitney v. Allaire, 1 Com. R. 305; 9 Barn. & Cress. 928; Dobell v. Stevens, 3 Barn. & Cress. 623; Sanford v. Handy, 23 Wend. R. 260; Van Epps v. Harrison, 5 Hill, 63 .

There was a demurrer to the complaint, assigning for cause, that it did not contain facts sufficient to constitute a cause of action. The demurrer was overruled. Issues oí fact were then formed, tried by a jury, and a verdict returned for the plaintiff, on which judgment passed. There is no bill of exceptions in the record. The assignment by the agent, recited above, was of no legal effect, because the cause of action was in the plaintiff without an assignment. The contract was, in-law, with the principal, and the fraud was practiced upon him. This disposes of the only point made by the appellants in this Court. They assume that the right of the plaintiff to sue is in virtue of the assignment alone, and. they then deny that such a cause of action is assignable, and cite Zabriskie et al. v. Smith, 3 Kernan, 322, to sustain their position. They further assume that this objection can be raised under the cause of demurrer that the eomplaint does not state a cause of action.

We have seen that this first assumption is erroneous, and the mistake goes to the whole case. Perhaps the objection they base upon this last assumption should have been raised, by assigning a cause of demurrer going to the question of parties, of the right of the plaintiff to sue. See Collins v. Nave, 9 Ind. 209 ; though we doubt the correctness of the decision in that case. See 17 N. Y. Court of Appeals, 592; and Voorhies’ N. Y. Code, 7th Edition, p. 196.

Per Curiam.

The judgment is affirmed, with 3 per cent, damages and costs.