
    August J. Tregner, Respondent, v. Marshman W. Hazen, Appellant.
    Second Department,
    January 18, 1907.
    Principal and agent — action by agent founded on false representations by principal —no recovery without proof of damage.
    An agent suing his principal on the theory that the contract of agency was induced by the fraudulent representations of the principal must show damage in order to recover.
    A selling agent who alleges that he entered, upon the agency relying upon false representations^ the principal that the principal’s business was the largest in the United States, is not entitled to recover by merely showing that he failed to make the sales required by the contract, when, there is no proof that, his failure to make such sales was due to the alleged false representations.
    Appeal by the defendant, Marshman W. Hazen, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of December, 1905, upon the verdict of a jury, and also from an order entered in said clerk's office on the 13th day of December, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      James A. Allen, for the appellant.
    
      David W. Rockmore, for the respondent.
   Miller, J.:

' On the 10th day of May, 1902, the plaintiff entered into a contract with the defendant, a publisher, pursuant to which he agreed to act as a general selling agent of the defendant in the State of Iowa. The defendant was to furnish the plaintiff an office at Des Moines, la., and to pay him a monthly salary together with the. ■expenses of the business, and in addition a commission on the net sales made through solicitors and agents employed by him. The payment of said salary and expenses, however, was conditioned upon - a stipulated amount of business which the plaintiff was required to do in. order to fulfill his contract. The plaintiff was required by said contract'to and did order and pay for books of the-net value of $800, and it "was agreed that upon the termination of the agency the defendant-should repurchase any books which the plaintiff might then have on hand, at the prices originally paid. For some reason the plaintiff was not successful,, and he claims''that he was induced by fraud to enter into the agreement.' He did not return or offer to return the books which be. received pursuant to the contract and for which lie paid said sum of $800. The first difficulty encountered upon an examination of this record is to know whether the_action is one to recover back the money paid on a rescission of the contract for fraud, or one to recover damages for the fraud. The allegations of t-lie: complaint are: appropriate to the former action ; no attempt whatever was made to prove damages, and the case was submitted to the jury in a charge more appropriate to the former "action than to the latter, although from a, remark of the court in response to -an exception taken by the defendant it would seem that the court was Of the opinion that the case had gone to the jury as an action to recover damages for false representations. Upon this appeal' the appellant argues that the plaintiff cannot have damages for the fraud, as he has treated the contract as having been rescinded, w-liil'e the respondent’ insists that there-,was no actual rescission- of the contract, and- that the cause of action established was for damages'for fraud.' I think we may adopt the plaintiff’s own view of. the nature of his cause of action, particularly as he could not maintain ah action to recover back the money paid on the theory of rescission without first-having returned' or offered to return the books received by him. The fraud complained of consisted of alleged false representations that' the" defendant had “for-many years done’probably the largest business in the "United States, putting on the market many unique and valuable publications,” and alleged false promises to p>av the plaintiff the salary, expenses and commission hereinbefore referred to. While the case was tried and submitted to the jury apparently on the theory that broken promises as well as misstatements of fact could be' made the basis of an action for fraud, I shall not discuss the proposition that the plaintiff could recover in this action, if at all, only upon the alleged representation first quoted supra. In that portion of the complaint containing the necessary allegation of reliance by the plaintiff upon the representation made, he alleged that he relied on the correspondence containing such representations. It was not claimed that said representation was made by the defendant personally, but by his agent, with whom the plaintiff had some negotiations preliminary to negotiating directly with the defendant. One of the letters of said agent did contain a statement that “ the M. W. Hazen Co. * * * in their special lines have for many years done probably the largest business in the United States, putting on the market many unique and valuable publications.” There was no attempt made to prove the falsity of this representation, but the plaintiff was permitted, over objection, to testify to an oral representation made by said agent exactly like that last quoted with the omission of the words “in their special lines.” It was conceded that the defendant was not' doing the largest publishing business in the United States. After the plaintiff had enumerated at the request of' the defendant’s counsel the representations- on which he relied without referring in any way to the one under discussion, he did on redirect examination in answer to a leading question-of his counsel say that he relied on said representation, but a reading of this record has convinced me that said representation had not the slightest influence in inducing the plaintiff to make the contract-; but assuming that there was sufficient evidence to go to the jury upon that question and that the representation was of that character as, if untrue, would furnishi the basis of an action for fraud, and overlooking the fact that the representation proven was oral while the complaint, if it did not in terms allege that it was written, is at least open to the charge of duplicity as leading the defendant so to believe, it is plain that the plaintiff cannot maintain the action for damages for fraud without proof of some damage.

This record suggests no reason to think that the plaintiff would have succeeded any better if the representation relied on had been true, much less does it show to what extent the failure was due to the alleged fraud'. The'cause of the failure is left entirely to speculation except as it may be inferred from the revelation of the plaintiff himself by his own letters. The mere fact, that one party has been gililty of wrongdoing do.es.not give the other a cause of action for damages unless as the result of such wrongdoing he has sustained' damages. (Hutchins v. Hutchins, 7 Hill, 104; Deobold v. Oppermann, 111 N. Y. 531, 512;, Jex v. Straus, 122 id. 293.) If the defendant’s agent lied to the plaintiff, as the latter claims, it is possible, if such falsehood had been relied upon by the plaintiff, that it might have furnished sufficient ground for the rescission of the contract and the recovery of the money paid,, but this question we need not now decide. It is sufficient now to hold that the plaintiff has proven no damages resulting from the alleged fraud.

The defendant’s motion for ,a nonsuit should, therefore, have been granted, and' the judgment must be reversed and a new trial granted, costs to abide the event.

Hirsohberg, P. J.,-Jenics and Rich, JJ., concurred.

Judgment' and order reversed and new trial granted, costs to-abide the event.  