
    William I. Gaunt, App’lt, v. Ira P. Taylor, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    Fraud—Infancy.
    Defendant purchased goods of plaintiff on credit, representing that he kept a store and was doing a nice little business in his own name. It appeared that he did not own the store, but was carrying on business for his sister, whose name he signed to the contract of sale, and that he was under twenty-one. Held, that plaintiff was entitled to recover damages for the wrongful obtaining of the goods from him without returning the money received on the sale.
    Appeal from judgment of the Orange county court, reversing a judgment of a justice’s court in favor of plaintiff.
    
      W. D. Mills, for app’lt; T. A. Read, for resp’t.
   Dykman, J.

—This is an appeal by the plaintiff from a judgment of the county court of Orange county, reversing a judgment against the defendant in favor of the plaintiff, obtained in a court of a justice of the peace, and if the judgment is to endure it will crown with success the perpetration of a fraud which deceived the plaintiff and induced him to sell the defendant the property in question.

The defendant applied to the plaintiff to purchase a wagon, and in answer to the inquiry of the plaintiff respecting his pecuniary circumstances, he said he was keeping a store in Middletown and doing a nice little business in his own name.

A friend of the defendant, who was with him, said he was all right. The plaintiff was thus induced to sell the wagon to the defendant, who thereupon gave him the following paper, which was signed by the defendant:

Chester, 1ST. Y., April 1, 1890.

I this day bought a wagon of W. I. Gaunt for $175, gave a check for twenty-five dollars, agree to pay fifty dollars in sixty days and ten dollars per month until April 1, 1891, and then will pay all balance due.

A. E. Taylor,

72 M Main St., Middletown, N. Y.

It transpired subsequently that the name signed to that instrument was the name of the sister of the defendant; that he was transacting business for her; that he did not own the store, and that he was under twenty-one years of age. It thus appeared that he was transacting business in the name of his sister, which was evidence of his insolvency, and that he did not sign his own name to the paper promise to pay for the wagon, and that he was incapacitated by. his infancy to make a valid and binding contract with the plaintiff.

The fraud and insolvency of the defendant were sufficiently established, and the plaintiff had the legal right to bring an action against the defendant to recover the damages he sustained by the transaction. Such am action is based upon the fraud practiced upon the plaintiff, and it may be maintained without a return of the money received upon the delivery of the wagon.

The complaint contains facts sufficient to constitute a cause of action for damages for wrongfully obtaining the wagon from the plaintiff by the defendant, and the prayer for relief is not material because the defendant appeared and answered, and the plaintiff was entitled to the judgment to which his complaint and evidence showed him entitled. He could not have a judgment for the return of the wagon, because he had not returned the money he received upon the sale, and thus rescinded the contract, and therefore he could have a judgment for the amount of his damages, and that is what the judgment of the justice awarded him. Although inartificially stated, the judgment was for the plaintiff for $154.50, if the possession of the wagon was not delivered to the plaintiff.

That judgment was just, and there were no substantial reasons for its reversal; and if judgment had been rendered by the court according to the justice of the case, without regard to technical errors, as the law requires, the judgment would have been affirmed

We must, therefore, do now what the county court erroneously failed to do. The judgment of the county court should, therefore, be reversed, and the judgment of the justice’s court be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  