
    Henry W. Steinhaeuser, Assignee, Resp’t, v. John Mason, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 6, 1892.)
    
    Fraud—Conspiracy.
    In an action for a balance due on a sale of diamonds, the answer alleged that plaintiff and one L., an employee of defendant, conspired to take advantage of defendant’s ignorance by selling him goods upon L.’s representation that they were worth the sum charged and could not be bought for a less price in open market, and that, relying on such false representa- \ tians, defendant purchased the goods in question. No evidence was given to i show any connection between the plaintiff and L., except that the latter had formerly been in plaintiff’s service, which was known to defendant when he employed him, and defendant testified that he relied on L. ’s judgment and advice as an expert diamond buyer. Held, that the defense was not sustained.
    Appeal by defendant from a judgment of this court in favor of plaintiff, for 814,136.77, entered upon the report of a referee,
    
      Franklin Bien, for app’lt; Abram filing, for resp’t.
   Daly, Ch. J.

The action was originally commenced by the plaintiff’s assignor Charles Magnus, to recover $12,411.89 balance claimed to be due upon the sale by him to the defendant of merchandise consisting of diamonds, pearls and precious stones, at the agreed price of $33,380.49, crediting defendant with the payment of $20,000, on account, and the return of part of the goods of the value of $868.60. After the commencement of the action the plaintiff Magnus made an assignment for the benefit of creditors to the present plaintiff, and the action was continued by the latter by supplemental complaint.

The defense to the claim upon which the action is based is that the defendant, a young man, had just started in the diamond and jewelry business, and was unacquainted with diamonds and precious stones, and that Magnus and one, Lalcemeyer (who was an employee of defendant) entered into a conspiracy to take advantage of defendant’s ignorance and sell said goods to him upon the representation made by Lakemeyer that they were reasonably worth the sum charged therefor, and could not be purchased at a cheaper price in the open market from importers of such goods; and that Magnus well knew at the time that the prices were double what the goods could have been purchased for in the open market, and that he knew that he was defrauding defendant out of his money; and that in reliance upon such representations defendant, purchased the goods,

The defense was not supported by the proof. Beyond the fact that Lakemeyer had been in Magnus’ service before he was employed by defendant, no connection between the two was shown; and as the defendant knew when he hired Lakemeyer that he had been so previously employed by Magnus, there was no deception in that regard. According to defendant’s own testimony Lakemeyer advised him to purchase the goods, and he relied upon Lakemeyer’s judgment, but this, in the absence of any proof that Lakemeyer was acting with Magnus, not only made out no case against Magnus, but in fact negatived any claim that the sale was induced by the representations of the vendor.

It is true the defendant also swore that one Stackhouse, the salesman for Magnus, represented the goods to be first-class and the best in the market and as cheap as could be bought in the open market, and defendant swore that he relied upon Stackhouse’s statement; but the referee was entirely justified in finding that the purchase was made by defendant in reliance upon the judgment of his employee Lakemeyer and nothing else. The defendant testified that Lakemeyer examined the goods and told him that they were excellent stuff, and that he employed Lakemeyer as an expert diamond dealer and relied upon his judgment altogether.

This testimony could leave no doubt in the mind that the defendant bought the goods in reliance upon the judgment <of Lakemeyer, and not upon anything that Stackhouse might have to say in praise of his employer’s wares. It is not to be easily credited that in making a purchase of over $30,000 worth of precious stones, of the value of which he knew nothing, the defendant would rely upon any such general representations as he attributes to Stackhouse, who, it may be said, frankly admits that he told the defendant that they were all first-class goods. But the defendant hired Lalcemeyer to protect his interests in such purchase, .and it is evident relied upon his opinion in making this purchase. The referee was, therefore, justified in finding that there was no fraud or conspiracy practiced by Magnus or his agents or employees, and that no representations were made by Stackhouse, or by Magnus, to induce the sale, and having made a finding to that effect it is immaterial that he, although he found in compliance with a request of defendant that the plaintiff was bound by the representations of Stackhouse, refused to embody such finding in his decision. ‘

The plaintiff having failed to prove his defense of conspiracy between Magnus and Lalcemeyer, claims that the evidence establishes an additional defense, to wit, fraudulent representations by Magnus, through Stackhouse, inducing the sale. This defense is not set up in the answer, nor did the defendant move for an amendment to the answer so as to allege such a defense. He did make a motion to conform the answer to the proof “to have it clearly shown upon the record that the goods sold by Magnus and mentioned in the bill of sale were not reasonably worth the sum therein charged, but were only worth the sum of not exceeding §20,000, and that they could have been bought upon the open market at that price.” This motion was denied by the referee because that defense was already set up in the answer. The answer does contain an allegation substantially to that effect, but contains no claim of fraudulent representations to induce the sale, except such as were averred to have been made by Lalcemeyer in pursuance of the alleged conspiracy. Ho additional defense was, therefore, proposed by the motion to conform the answer to the proof. But even if the proposed amendment set forth the additional defense claimed, the proof failed to establish such defense, for it was evident that the goods were not purchased in reliance upon any representations of Stackhouse or of Magnus, but upon the representation of defendant’s own employee, Lakemeyer.

The defense of conspiracy or of fraud not having been established, the exceptions to rulings upon evidence as to the value and quality of the goods, the qualifications of witnesses as experts, etc., do not require consideration. Much stress is laid upon the objection that it is not shown that the claim in suit passed to the assignee under the general assignment. The assignment was offered in evidence, but it is not printed in full in the case, and as there is no certificate that the case contains all the evidence offered upon the trial, but only a certificate that it contains all the testimony, we must assume that there was sufficient evidence before the referee to support his finding that the assignee was entitled to judgment. We have examined the other exceptions in the case, but they do not call for reversal.

The judgment should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.  