
    Daniel P. Nichols and Others, Respondents, v. Daniel Coleman and Others, Appellants.
    
      False representations — remedy by retaking the property and thereafter by suit for damages — interest is pa/rt of the damages — when the court may add it to the verdict.
    
    Where the vendors in a contract of conditional sale have been induced to execute the contract by false representations, they may, if the vendee neglects to pay the installments of the purchase price as they become due, repossess themselves of the property, pursuant to the terms of the contract, and sue for the damages which they have suffered in consequence of the false representations.
    Proof, in an action based upon false representations as to a vendee’s financial condition, that a transfer of his property, made by the vendee prior to the sale, was not accompanied by a change of possession, does not tend to explain the bill of sale of such property or establish the fact that the vendee had not divested himself of his property.
    In actions of tort to recover unliquidated damages, the question of interest is for the jury to determine, and they may either grant or withhold such interest in their discretion.
    The interest forms a part of the damages which the j ury may award, and the court has no power to award interest a*s a matter of law.
    It is competent, however, for the parties, upon the trial of the action, to allow the court, in its discretion, to add interest to the amount of the verdict.
    Van Brunt, P. J., dissented.
    Appeal by the defendants, Daniel Coleman and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 10th day of November, 1903, upon the .verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of November, 1903, denying the defendants’ motion for a new trial made upon the minutes.
    
      Allan Lee Smidt, for the appellants.
    
      Herbert Goldmark, for the respondents.
   Hatch, J.:

The plaintiffs bring -this action to recover damages averred to have been sustained by reason of the false and fraudulent representations made by the defendants to procure the delivery to Daniel Coleman, of two hansom cabs, pursuant to. the terms of a conditional sale. The contract of sale was made by Daniel Coleman on the 16th day of April, 1897, and in terms it provides that the said Coleman had hired from the plaintiffs the cabs therein described, for the use of which he agreed to pay $1,641, $1 upon the execution of the contract and the balance in monthly installments of $50 and $100 per month, secured to be paid by twenty promissory notes made by Daniel Coleman and payable to the plaintiffs, the first seven of these notes being for $50 each, twelve for $100 each and the last for $90. These notes all bore date April 12, 1897, the first being payable one month after date and the others falling due successively at intervals of one month, the last one being due twenty months from date. It was further provided in the contract that upon the final payment of all said notes, with interest thereon, title to the cabs should then vest in Daniel Coleman.

At the time of the negotiations between these parties which resulted in the execution of the conditional contract of sale and of the delivery of the cabs, Daniel Coleman and the other defendants, his two sons,, each stated and represented that Daniel Coleman was the owner of the livery business conducted at No. 120 West Fifty-sixth street in the city of New York, that being the place of business of Daniel Coleman and in connection with which the cabs were to be used. The plaintiffs testified that in making such' sale they relied upon these representations and believed them to be true and were thereby induced to make the sale. After the execution of the contract the cabs and the equipment which accompanied them, all of which was embraced in the conditional contract of sale, were delivered to Daniel Coleman on the 16th day of April, 1897. Coleman paid the first two notes of fifty dollars . each as they matured, but defaulted in payment of all of the others. Plaintiffs made repeated efforts to collect the notes, but failing therein, they demanded a redelivery of the property pursuant to the terms of the contract, and on the 20th day of January, 1898, upon a written request, the cabs were delivered to and received by the plaintiffs. It was made to appear upon the trial that prior to the delivery of the cabs to Daniel Coleman and prior to the representations which were made by him and the other defendants, as hereinbefore stated, Daniel Coleman, under date of March 30,1897, had executed and delivered a bill of sale of all of his property upon the premises Nos. 120-122, West Fifty-sixth street, and also all his right, title and interest in and to a business conducted by him at No. i 102 East Forty-first street in trust for the benefit of the children of Daniel Coleman pursuant to a written instrument bearing even date with the bill of sale. These papers had been executed and delivered prior to the transaction, the subject of this action, and the defendant Harry Coleman was at the time of the delivery of the cabs in the possession and ownership of the business. There was, however, no apparent change in the conduct of the business or in the control of the property. Upon discovering these facts the plaintiffs brought this action and surrendered the notes upon the trial. It was stipulated by counsel upon the tidal that the measure of damages, if the plaintiffs were entitled to recover, should be one dollar per day for each of the two cabs for the period of 274 days, that being the time the cabs were in the possession of the defendants. The case being submitted to the jury, it returned a verdict in favor of the plaintiffs for the sum so agreed upon less the sum of $100, represented by the two promissory notes which were paid by Daniel Coleman. Prior to the submission of the case to the jury a colloquy was had between the court and counsel as to the right of the plaintiffs to recover interest upon any sum which the jury might award. No conclusion was reached thereon until the court had submitted the question to the jury, when the record states : “ By consent of counsel the question of interest is reserved and may be found by the court hereafter.” After a verdict was rendered the court added interest to the amount awarded in the sum of $155.16.

It was not controverted but that the bill of sale which transferred the title to the property from Daniel Coleman to his son Harry was executed and delivered prior to the time of the conditional sale of the cabs, nor was it claimed that any disclosure of its contents was made to the plaintiffs or that they knew anything about it. Its effect was to divest Daniel Coleman of all right, title and interest in the property. The evidence upon the part of the plaintiffs tended to establish that the representations were made and, if made, their falsity was admitted. The question became one, therefore, for the jury and their finding upon that subject is conclusive. Plaintiffs had the right pursuant to the terms of the contract to repossess themselves of the property and to sue for the damages which they had suffered by the fraud perpetrated upon them. (Thomas v. Dickinson, 65 Hun, 5; Pryor v. Foster, 17 N. Y. St. Repr. 472 ; 24 id. 917; affd. on appeal, 130 N. Y. 171.)

It is claimed, however, that the court committed error in submitting the case to the jury.- Upon the subject of the bill of sale the court charged: “ There is no dispute that at the time when the goods were sold and delivered Daniel Coleman did not own that livery stable, and there has not been the slightest effort made in this case to explain why that bill of sale was made or that it was not made for any purpose different from that which is expressed in the bill of sale and the trust agreement.” To that part of the charge which stated that there had been no effort to explain the bill of sale, or show how it was made, counsel for the defendants excepted. The claim is that an attempt was made to explain this bill of sale, but that such evidence was excluded under the objection of the plaintiffs. Upon this subject defendants’ counsel called John Coleman, one of the defendants, as a witness, and asked him if there was any change in the way of conducting the business, after the bill of sale was executed and delivered. Objection was interposed to this question and sustained. He was then asked: Q. Did that business after the transfer to your brother continue to be carried on in the name of Daniel Coleman ? ” This was objected to and the objection sustained.. “ Q. Did your father continue in that business after the bill of sale just as before?” The same objection was made and sustained, and to the several rulings the defendants took an exception. This was all the evidence offered or attempted to be offered upon such subject. It was not claimed that, these questions were preliminary to the development of furthertestim'ony upon the subject. It falls far short in sustaining" the appellants’ contention. It is indisputable that the defendants did not seek' by their questions to show that the bill of sale was not executed and delivered, or that it did not transfer absolute" title to the son. All the questions called for was whether the business was continued the same after as before. This did not explain the bill of sale or change the fact that Daniel Coleman had divested himself of this property. What it would have shown if the questions had been answered in the affirmative was that while there had been an absolute transfer by Daniel Coleman of his property, and he was no longer the owner of it, yet that he. held himself out to the world as being such owner while in fact the bill of sale which passed his title was kept a secret. Such a transaction has always been laid hold of as constituting a badge of fraud, and is always pertinent in establishing such fact. It did not in the slightest degree tend to explain why the bill of sale was made, and certainly, if affirmative answers-had been given, it would not have shown that it was made for any different purpose than that which was expressed upon its face, and nothing else was claimed for it. The court was, therefore, correct in the charge which it made.

It is further claimed that the court erred in allowing interest upon the amount of the verdict. It is undoubtedly the rule that in actions of tort to recover unliquidated damages the question of' interest is for the jury to determine, and they may either grant or-withhold it in their discretion. It forms a part of the damages which they may award, and the court has no power to award it as a matter of law. (Brush v. L. I. R. R. Co., 10 App. Div. 535 ; affd. on appeal, 158 N. Y. 742.) The court was, therefore, wrong-in assuming to award interest upon the verdict unless the parties, have stipulated that he might. At the time of the colloquy above adverted to, defendants’ counsel offered to concede, if the court required, that the plaintiffs were entitled to interest upon the recovery if they should obtain one. The court asked whether counsel was willing to concede that interest should be awarded, but declined to require the concession, and defendants’ counsel stated that.it did not seem to him that as matter of damages it was properly before-the court.- Subsequently, at the close of the case, the stipulation which has been already quoted was made. We think the fair construction of all that took place upon the subject is that the defendants must be regarded as having stipulated that if the plaintiffs had a recovery the court might add interest to the verdict in its discretion. As to this matter the court was substituted for the jury. In this view no error was committed as it was competent for the defendants so to stipulate.

The result leads us to the conclusion that the judgment and order should be affirmed, with costs.

Patterson, O’Brien and McLaughlin, JJ., concurred; Van Brunt, P. J., dissented.

Judgment and order affirmed, with costs.  