
    Joseph H. Colyer, Appellant, v. John Guilfoyle, Respondent.
    
      Conspiracy to surrender a contact on the faith of which the plaintiff had acted — when properly pleaded — a dismissal. on the merits for a failure of proof is improper.
    
    A complaint which alleges that one Henry White made a contract with the defendant to do the plastering in a building which the defendant was engaged in erecting, for the sum of §15;000, on the faith and credit of which contract the plaintiff sold to White a quantity of material; for which a certain sum was still due and owing to him; that thereafter the defendant, with intent to defraud the plaintiff, induced White to surrender his contract" and consent to the substitu- '- tion, in place thereof, of a new contract between the defendant and White’s son, by which the agreed price of the work should be §9,000;- that, the elder White was totally insolvent and without money other than what he could obtain on his contract, and tliat by reason thereof the plaintiff lost his debt, states a cause of action for conspiracy.
    What evidence thereof is insufficient to justify the submission of the case to the ■ jury, considered.
    Where the plaintiff in an action at law is not entitled to recover because of a failure in his proof, he should be nonsuited, and it is error to dismiss his complaint upon the merits.
    Appeal by the plaintiff, Joseph H. Oolyer, from a judgment of-the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 6th day of April, 1899, upon the dismissal of the complaint upon the merits, by direction of the court, after a trial before the court and a jury, at the Kings County Trial Term, and also from an order entered in said- clerk’s office on the 3d day of April, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Hector M. Hitchings, for the appellant.
    
      Charles J. Patterson, for the respondent.
   Per Curiam :

The action is brought to recover damages for a conspiracy between the defendant and Henry White and Henry A. White, to cheat and defraud the plaintiff out of certain material and the value thereof,- sold by the plaintiff to Henry A. - White. The defendant is- a builder who, at the time of the occurrence which is the subject of the action, was engaged in the erection of an armory. The plaintiff alleges that Henry White made a contract with the defendant to do the plastering for the sum of $15,000, which the defendant agreed to pay; that on the faith and credit of this contract the plaintiff sold to said White a large quantity of material, upon which there is still due the sum of $1,333.27; that afterwards the defendant, with intent to cheat and defraud the plaintiff, induced said White to surrender and cancel said contract, and to have a new contract made between the defendant and Henry A. White, the son of Henry White, to be substituted in place thereof, by which the agreed price of the work should be only the sum of $9,000 ; that the elder White was totally insolvent and without money other than what he could obtain on such contract, and that by reason thereof the plaintiff lost his debt. At the conclusion of the evidence the learned trial court dismissed the complaint on the merits.

We have no doubt that am. action for a conspiracy, as alleged in the complaint, could be maintained. (Moore v. Tracy, 7 Wend. 229 ; Place v. Minster, 65 N. Y. 89 ; Pilcher v. Levino, 80 Hun, 399.) The last case was decided by the late General Term of this department. But we are of opinion, however, that the evidence was not sufficient to justify the submission of the case to the jury. The evidence of the conspiracy offered by the plaintiff consists of the testimony of the two Whites, which is of the most unsatisfactory character, and it does not appear with great clearness what either of these witnesses meant to;,assert. For the purpose of this appeal, however, the evidence must be regarded in the most favorable view of it which the jury could have adopted. It clearly appears that the original written contract, signed, by the elder White, was for $9,000 only. If we assume that the testimony -was sufficient to submit to the jury the claim that this was not the real contract between the parties, but only a blind or cover, there is not the slightest evidence to the .effect that there was ever an agreement to pay $15,000, or any other specific sum, for the work-There was' either a contract to do the work on a quantum^ meruit, for its fair and' reasonable value, or the elder White was not a contractor at all, blit merely the agent of the defendant Guilfoyle. •

The learned counsel for the appellant states in his brief that White, Sr., testified “that he always supposed that he was. merely superintendent for defendant upon the job.” We cannot find this exact testimony in the case, though it may be we have overlooked it. However, there is evidence on which such a claim possibly may be predicated, though as to its effect we express no opinion. If we assume that White, Sr., was merely the agent of the defendant, then plainly no conspiracy has affected the rights of the plaintiff. He may sue the defendant as an undisclosed principal for the value of the goods sold.

This suit, however, cannot be turned into an action of that character, for here the action is in tort, and execution on a judgnnent issued against the defendant would run against the person. -Nor will the result be changed if we assume that the work was ■done under an oral agreement for a qua/ntum meruit. It is not pretended that the original written agreement for $9,000 was made with any intention of defrauding White’s creditors. The sole -object of its execution, as stated by White, was that it might be ■shown to other bidders on the work, and thus afford the defendant -•a justification for preferring White to others; though it must be -confessed that, in this respect as in the rest of the witness’ testimony, it is very difficult to ascertain what he really meant to assert. Assuming such to have been its object, surely the agreement was a fraud on no one. Indeed, the plaintiff does not rest his •charge of fraud or conspiracy on the execution of the original •agreement, but on the surrender of the agreement by White, Sr., and the execution of a new agreement between the defendant and White, Jr., for doing the whole work. Both agreements bear date April 17, 1893, and the work was commenced shortly thereafter. The plaintiff contends that the agreement with White, •Jr., and the surrender were made in November, 1893. The •defendant testifies that the second agreement was made immediately -after the first, and that the reason of the substitution of the younger White for the elder was that the latter was insolvent, and hence he ■asked that the contract be made in the name of his son. The -defendant would seem to be confirmed in this statement by the fact that all the checks given in payment of the work—the first as early ■¡as May twenty-seventh, long before the alleged substitution testified to by the Whites — were made to White, Jr., and the money received by the plaintiff on account of the goods sold was in such •checks to the order of White, Jr., indorsed over to the plaintiff by the father in the son’s name.

But assuming that, notwithstanding these facts, the question ■of the .time when the contract with White, Jr., was made was Tor the jury, still we do not see how the making of a new contract affected the interests of the plaintiff. The elder White gave Tip nothing by the surrender of the $9,000 contract, because the very foundation of the plaintiff’s case is that that instrument was not the ' real contract between the parties. White’s claim for the work he had done under the oral contract to-the time he ceased work, still continued undischarged, except so far. as it had been satisfied by payment. If this has not been assigned the plaintiff, as a creditor of White, may. reach this claim. Nor did the plaintiff lose anything by the delivery or sale of material after the alleged transfer in November. He fur-, nisiied White, Jr., subsequent to that time, with goods to the amount of $348, but during the same period he received from White, Jr.,, the sum of $500 on general account. There is not any evidence in the case tending to show that the defendant ever suggested the purchasing of the goods on credit or otherwise from the plaintiff or any other person. , The sole claim is based on the alleged substitution of contracts in November, 1893. This, as we have suggested, seems-disproved by the checks and conduct of the work. But be that as-it may, its effect is not shown to have in any manner injured or defrauded the plaintiff. The action was at1 law, and the defect in the plaintiff’s case was a failure of proof. The dismissal on the merits was, therefore, erroneous. There should have been only the ordinary nonsuit.

The judgment appealed from should be modified by striking, therefrom the words “ on the merits,” and as modified affirmed, without costs of this appeal to either party.

- All concurred.

Judgment'modified by striking therefrom the words “on the merits,” and as modified affirmed, without costs to either party. 
      
       This opinion was written by Mr. Justice Cullen before Ms designation as an associate judge of the Court of Appeals, and is adopted by this court. The decision of the court was rendered after such designation was made.
     