
    Isaac Rabinowitz et al., Resp’ts, v. Simon Cohen, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 1, 1892.)
    
    
      1. Fraud—Measure of damages in action for.
    In an action for damages for fraud and deceit in procuring plaintiffs to manufactúre certain articles, the measure of damages is the actual cost of their manufacture.
    3. False bepbesentation—Evidence op knowledge.
    Where a person makes a false representation and the facts represented are of such a nature that the party making the representation may be assumed to have personal knowledge of them, proof of their falsity is sufficient evidence of his knowledge of the "falsity of the representation when it was made.
    Appeal from a judgment for plaintiffs rendered in the district court of the city of Mew York for the fourth judicial district, in an action for damages for fraud and deceit.
    
      A. A. Sarasohn, for app’lt; Louis Lavens, for resp’ts.
   Bischoff, J.

In an action for damages for fraud and deceit the measure is not what plaintiff would have realized had the representations shown to Be false been true, but what he has lost by reason of the deceit. Defendant is bound to make good the loss sustained, such as money's that plaintiff has paid out and interest, and any other' outlay legitimately attributable to defendant’s fraudulent conduct; but this liability .does not include the expected fruits of an unrealized speculation. Smith v. Bolles, 132 U. S., 125. The claim was that defendant, as the pretended agent of Steinberg & Co., a fictitious firm, had falsely and fraudulently induced plaintiffs to enter into a contract for the manufacture and sale to them of 400 paper boxes at the agreed price of twelve dollars per hundred, and there was evidence to the effect that the cost of labor and material was ten dollars per hundred or forty dollars for the four hundred. The judgment was for forty dollars and it seems, therefore, that the proper measure of .damages was applied by the trial justice.

The judgment, however, appears to be excessive in another respect. It was conceded that the first two hundred boxes were ordered by the defendant, who at the time represented himself as authorized by Steinberg & Co., of 212 Stan ox street, Brooklyn, to-make the contract for the manufacture and sale of such boxes to them. It was also conceded that there was, as a matter of fact, no-such firm as Steinberg & Co., and that defendant made the representations to, and contract with, plaintiffs at the suggestion of one-Moses Diskin, a rival manufacturer. It was immaterial that the defendant did not at the time know Steinberg & Co. to be fictitious. His representation that as the agent of Steinberg & Co. he was authorized to conclude a contract for the sale and manufacture-of paper boxes to them implied that they were an actual and existing firm, and plaintiffs were thereby induced, to give them credit in undertaking the expenditures necessary in the manufacture of - the boxes. That defendant acted in good faith in making the representation is no defense, for he who deliberately represents that to be true which he does not know to be true and induces another to act thereon, is to be placed in the same category with him who represents that to be true which he knows to be false, Am. &Eng. Ency. of Law, “ Deceit,” Vol. 5, 319 ; Story’s Eq. Jur., § 193, and where the facts represented are of such a nature that the party making the representation may be assumed to have personal knowledge of them, proof of their falsity is sufficient evidence of his knowledge of the falsity of the representation when it was made. Morgan v. Skiddy, 62 N. Y., 319.

As to the remaining two hundred boxes, however, it appears-that plaintiffs were induced to proceed with their manufacture-by reason of the receipt by mail of a postal card from “ Steinberg & Co.,” bearing an order to that effect. It was conjectural only that the postal card emanated from defendant. There was no evidence to. that effect, and the uncontradicted testimony of Diskiii, a witness for the defense, was that the witness was the author of the postal card.

.The judgment appealed from should, therefore, be reversed, with costs to the appellant, unless respondents stipulate to reduce-the judgment to twenty dollars and the Posts of the court below; and upon filing such a stipulation the judgment will be affirmed, as reduced, without costs of this appeal to either party.

Bookstaver, J., concurs.  