
    W. H. HAYDN MILLER, Plaintiff v. WILLIAM H. CURTISS, Defendant.
    
      False and fraudulent representations, action to recover money paid thereon.
    
    It appeared on the trial in this action, that the defendant called plaintiff’s attention to the Stead Boiler Manufacturing Company and expressed confidence that its stock would be very valuable. Upon plaintiff’s expressing a desire to have some of the stock, the defendant said he had some of the stock but would not sell any of it; that the company had no stock for sale, and that there was none to be had unless perhaps a Mr. Allen, who had taken thirty shares, would sell his. Thereupon plaintiff requested defendant to ascertain if the Allen stock could be had. This the defendant promised to do and report to plaintiff. Shortly after, the defendant informed plaintiff that the Allen stock could be had. Plaintiff then requested the defendant to buy the Allen stock for him, and in pursuance of this instruction defendant delivered to plaintiff fifteen shares of the stock and received $900 from the plaintiff. Plaintiff subsequently discovered that the stock thus delivered to him was not the Allen stock but some of the defendant’s own stock. Upon making this discovery plaintiff tendered the stock back to defendant and demanded the return of his money. The defendant refused, and plaintiff then brought this action to recover the money paid.
    
      Held, that these facts and circumstances show constructive fraud. The defendant was in that situation of trust towards the plaintiff that did not allow him to deal with his own property when his principal had reason to believe that he was purchasing property for him from another.
    Before Freedman, Dugro and Gildersleeve, JJ.
    
      Decided July 2, 1891.
    
      Verdict directed at trial term arid exceptions ordered to be heard in the first instance at general term.
    
      Marshall P. Stafford, attorney and of counsel, for plaintiff.
    
      Leavitt & Keith, attorneys, and John Brooks Leavitt of counsel, for defendant.
   By the Court.—Dugro, J.

The defendant’s exceptions were ordered to be heard in the first instance at general term.

It seems the plaintiff told defendant to see whether Allen would sell his stock. Some time later defendant informed plaintiff that Allen’s stock could be got and was then told to buy it for plaintiff. Defendant thereupon transferred to plaintiff his own stock instead of Allen’s, the plaintiff believing that he was buying that of Allen. The plaintiff having offered to return the stock to the defendant and having demanded and been refused the return of the purchase money, asked for judgment for the amount paid. These facts appear conclusively from the evidence, and upon them the plaintiff is entitled to a judgment upon the verdict, unless there be a valid exception in the case. The case discloses none.

The purchase was by defendant from himself without any authority from the plaintiff, and in view of the relation existing between the parties, was a constructive fraud. Conkey v. Bond, 36 N. Y. 427.

The defendant, as in Gillette v. Peppercorn, 3 Beav. 78, was in a situation of trust, which did not allow him to deal with his own property when his principal had reason to believe he was dealing with another’s. The plaintiff was entitled to be put into possession of the actual facts, and their suppression was an act of impropriety to be discountenanced. Doubtless no fraudulent or corrupt intent impelled the defendant in making the sale himself, but the law has settled it that such facts and circumstances as appear in this case show constructive fraud. Conkey v. Bond, 34 Barb. 283.

The exceptions are overruled and judgment is ordered to be entered for the plaintiff upon the verdict, with costs.

Gildersleeve, J., concurred.

Freedman, J., (concurring.)

The reasons assigned by the general term upon the former appeal for a reversal of the judgment which the defendant had obtained, compel me to concur in the result now announced by Judge Dugro.  