
    Frank G. Mix, Appellant, v. Charles P. Boland Company, Respondent. (Action No. 2.)
    Third Department,
    November 13, 1912.
    Contract — action by vendor against vendee for fraudulent representations — complaint — waiver of right to perform prior contract.
    In an action against the defendant plaintiff claimed to have had a valid contract with a school to furnish stone for a building at one dollar per square foot, and that, relying upon representations by the defendant that the architect of the building would not consent that more than sixty cents be paid therefor, he made a contract with the defendant and furnished the stone to him for about sixty cents per square foot. He delivered the stone to the defendant for the use of the school, was paid the contract price and brought this action to recover an additional forty cents per square foot upon the ground that the defendant’s representations were fraudulently made, and that he relied thereupon in making the contract for the lesser sum.
    
      Held, that the alleged fraudulent representations deprived the plaintiff of the benefit of his favorable contract with the school;
    That an order dismissing the complaint for failure to state facts sufficient to constitute a cause of action should be reversed.
    When the plaintiff furnished the stone to the defendant for the school he thereby waived the right to furnish it under his contract with the school.
    Smith, P. J., dissented, with opinion.
    Appeal by the plaintiff, Frank Gr. Mix, from an order of the Supreme Court, made at the Columbia Special Term and entered in the office of the clerk of the county of Rensselaer on the 21st of May, 1912, dismissing ■ the 'complaint upon the ground that it does not state facts sufficient to constitute' a cause of action.
    
      George Lawyer, for the appellant.
    
      Thomas S. Fagan, for the respondent.
   Kellogg, J.:

The complaint alleged that the plaintiff entered into a contract with the defendant to cut "and furnish the limestone to be used in the construction of certain buildings belonging to the Emma Willard School, and pursuant thereto cut and delivered for that purpose 15,000 square feet for $8,388, whitih indicates a price of about fifty-six cents per foot. That before said contract was made the plaintiff and the Emma Willard School had entered into an agreement by which the plaintiff was to furnish it said limestone at one dollar per square foot, and that the defendant had knowledge of such agreement, and falsely and fraudulently stated and represented to the plaintiff that the architects of the school would not consent or agree that more than sixty cents per square foot should be paid for such stone. That such statements were false and fraudulent, and known by the defendant at the time so to be, and were made with the intent and purpose to deceive and defraud the plaintiff by inducing the plaintiff to agree to furnish said stone for the defendant at a less price than one dollar. That relying on said false statements, and believing them to be true, the plaintiff was induced to and did enter into said contract with the defendant, and furnished the stone for said school pursuant to the said contract with the defendant, to his damage of $6,612.

If the defendant made the false representations with the intent that the plaintiff should abandon his contract with the school, and furnish the stone for the defendant at a lower price, defendant cannot well claim that its representations did not naturally tend to bring about the result intended and accomplished. Evidently the school required the stone to be furnished but once, and when the plaintiff furnished it to the defendant for the school he thereby waived the right to furnish such stone under his contract with the school. That was evidently the intention of the defendant in making the representation. The plaintiff accepted the defendant’s statement, not choosing to enter into any controversy with the school or its architects. It now appears that the school and the architects raised no objection to carrying out the contract with the plaintiff, and that the plaintiff has lost the benefit of that contract solely through the false representations of the defendant.

The plaintiff upon this motion is entitled to a fair and liberal interpretation of his complaint, which is deemed to allege everything fairly foreshadowed by its allegations.

It reasonably follows from the allegations that the representations deprived the plaintiff of the benefit of the favorable contract which he had made with the school.

The order appealed from should, therefore, be reversed, with costs to the appellant, and the motion for judgment upon the pleadings should be denied, with ten dollars costs to the plaintiff.

All concurred, except Smith, P. J., dissenting in opinion.

Smith, P. J. (dissenting):

This is a most singular complaint. The plaintiff claims to have had a valid contract with the Emma Willard School to furnish the stone, which he did thereafter furnish under his contract with the defendant, at one dollar per square foot; that upon representation by the defendant that, the architects of the building would not consent that more than sixty cents be paid therefor, and without inquiring of the architects, the plaintiff made a contract with defendant to furnish the stone for sixty cents per square foot. The stone was furnished, for which he was paid the contract price. He now brings an action against the defendant for the additional forty cents, on the ground that defendant’s representation that the agent of the Emma Willard School and the architects would not consent to the payment of more than sixty cents was fraudulently made, and that he relied thereupon in making the- contract for the lesser sum. There is no statement as to the relations between this defendant and the Emma Willard School, as to whether this defendant was constructing this building for the Emma Willard School as independent contractor, or whether it acted as the agent of the Emma Willard School. There is no statement of any authority in the architects to consent or refuse to the payment of any specific sum for this stone, and it requires a vivid imagination to find even “ foreshadowed,” as stated by Mr. Justice Kellogg, much less alleged, any facts which would charge any liability upon this defendant. The facts alleged in defendant’s answer give to plaintiff no assistance.

In my judgment there are two fatal objections to this complaint. The first is, that the representation does not appear to have been material, because it does not appear that the architects or the agent of the Emma Willard School' had any authority to break a contract which had been entered into between the plaintiff and the Emilia Willard School, or any authority to dictate in any manner whatsoever what price should be paid for stone which was placed therein. No such authority can be implied merely from the relationship of agent or architect. An objection to the price made by a third party not shown to have power to act is not material to influence the making or surrender of a contract. The second objection to this complaint is, that upon its face the plaintiff has suffered no damage, but still has his claim against the Emma Willard School for the moneys due upon the contract. If this defendant was the agent of the Emma Willard School the contract for the lesser price fails to vary the original contract for the greater price for lack of consideration. If it was a separate contractor the plaintiff may still hold the Emma. Willard School upon the original contract, providing plaintiff has been in any way induced to abrogate the same by any false representations. The Emma Willard School could not accept the surrender of plaintiff’s contract without adopting the means by which such surrender was induced, and if fraudulent the surrender will be deemed ineffective, and the original contract will remain in full force. Plaintiff has furnished the stone, as provided for in the original contract with the Emma Willard School. His making a contract with a third party to accept less for the stone in no way varies the original contract with the Emma Willard School, at least, without showing some” privity between the third party and the Emma Willard School; and even if privity be shown where such subsequent promise was procured through fraudulent misrepresentation. I, therefore, vote for the affirmance of the order.

Order reversed, with ten dollars costs and disbursements to the appellant, and the motion for judgment upon the pleadings denied, with ten dollars costs to the plaintiff.  