
    CHARLES FORST, PLAINTIFF-RESPONDENT, v. GILBERT J. VOLLICK, DEFENDANT-APPELLANT.
    Argued October 9, 1930
    Decided April 16, 1931.
    Before Justices Case, Daly and Donges.
    Eor the plaintiff-respondent, J. Glenn Anderson.
    
    
      For defendant-appellant, Simon M. Seley.
    
   Peb Ctjbiam.

Plaintiff, respondent herein, is a painting contractor. The suit is to recover for labor expended on real estate property. The court below found that the defendant, appellant herein, had, with one Silverstein, attempted to perpetrate a fraud upon the plaintiff and awarded judgment in favor of the plaintiff and against the defendant in the sum of $400.

Silverstein had a contract of purchase with Thomas Judge, the then owner of the property. Yollick, who, according to the testimony, wras the broker negotiating the sale by Judge to Silverstein, approached the plaintiff with respect to the proposed work, informed him that Silverstein, and not the defendant, was the owner of the property and took the plaintiff to Silverstein. Plaintiff was shown the contract of purchase and himself entered into a written contract with Silver-stein for the doing of the work. Subsequently, Silverstein was unable to make his payments on the contract for the purchase'of the land and entered into a new contract with Yollick whereby the latter, for the consideration of $165, undertook to take title in his own name, complete the payments of the-purchase price and later convey to Silverstein.

There is not the evidence to sustain a finding of fraud-The essential elements of fraud have been frequently pronounced by the courts of this state. Byard v. Holmes, 34 N. J. L. 296; Kosobucki v. McGarry, 104 Id. 65. The burden of proving fraud is, of course, upon the one who charges it.. That burden has not been met.

Neither can the defendant be held responsible as an agent. Not only was the principal thoroughly disclosed, but the actual contract of employment was made between plaintiff and the principal. McCauley v. Ridgewood Trust Co., 81 N. J. L. 86.

Judgment below will be reversed, with costs.  