
    Otis L. Remington, Resp’t, v. Edward H. Van Ingen et al., App’lts.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed June 4, 1894.)
    
    Fraud—Misrepresentation—Opinion.
    If it is assumed that the misrepresentation by a person of his opinion is the misrepresentation of a fact, the opinion or belief expressed must be uttered in bad faith and with the intention to mislead, in order to constitute . legal fraud.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment at trial term, rendered upon a verdict for the plaintiff, which was directed by th,e court.
    Action to recover damages for defendants’ breach of a contract for plaintiff’s employment.
    Logan, Ciarle &' Demond {Walter S. Logan, of counsel), for app’lts; Ilorwilz & Ilershfteld {Otto llorwitz, of counsel), for resp’t.
    
      
       Affirming 56 St. Rep. 600.
    
   Bischoff, J.

The plaintiff sued to recover for the defendants’ breach of a contract to employ him from September 15, 1892, to the next succeeding first day of January, at an annual salary of thirteen hundred dollars, and the defenses, besides a denial that any such contract was in fact entered into, were that the contract was induced by misrepresentations on the part of the plaintiff for which it was subsequently rescinded, that the plaintiff was guilty of conduct which justified the defendants’ refusal to take him into their employ, and an accord and satisfaction. On the trial the plaintiff testified that the difference between his earning subsequent to the defendants’ breach, and the agreed salary, was two hundred and nine dollars and fifty-four cents, %hich was not disputed, the defendants’ counsel assenting that the plaintiff was entitled to recover that amount, if at all. When both sides rested the trial court directed a verdictfor the plaintiff, to which direction the defendants’ counsel duly excepted. The propriety and correctness of the direction are assailed on this appeal. That the contract of employment was concluded by the plaintiff’s letter of September 15th accepting the defendants’ proposition, contained in their letter of the 10th to commence the employment on the 15th, is, in the light of the plaintiff’s testimony concerning this interview on tile 6th with the defendant Edward H. Yan Ingen, corroborated as it is by the latter’s testimony, so apparent that to recapitulate the facts in evidence would be a task of mere supererogation. The defense also of an accord and. satisfaction was without any support and substantially abandoned,, The only actual contention was concerning the plaintiff’s representations to the defendant Edward H. Yan Ingen on September 6th, relying upon the truth of which the defendants’ claimed that they were induced to enter into the contract of employment, and for the alalleged falsity of which representations they urged that they were justified in refusing to receive the plaintiff as an employe at the time agreed. ‘ At the time of the interview alluded to the plaintiff was in the5 employ, of Macullar, Parker & Co., of Boston, and answering the inquiries of the defendant Edward H. Van Ingen, he stated that he was in good standing with his employers ; that they were entirely satisfied with him and his work, and that he could continue in their employ if he so desired. It is in evidence from the testimony of witnesses called for the defendants, and unchallenged, that at the time plaintiff made the representations he had been in the employ of Macullar, Parker & Co. for about three years, during which period his salary had been from time to time voluntarily increased by his employers, and up to which time no expression of dissatisfaction had been uttered by the latter, nor their intention to discharge the plaintiff from their employ intimated to him. Assuredly under such circumstances the plaintiff’s representation cannot be regarded as more than the mere expression of an opinion of his employers’ regard for him. Assuming, however, that the misrepresentation by a person of his opinion is the misrepresentation of a fact, subjectively so, it still remained for the defendants to show that the plaintiff at the time of the interview knew, or had reasons for knowing, that the regard of his employers for him was not such as he stated that he believed it to be, and so, that the opinion or belief expressed was uttered in bad faith and with the intention to mislead. Hot only is the record destitute of everything to that effect, but the fact that ample opportunity was afforded the defendants for inquiry of Macullar, Parker & Co., before the contract with plaintiff was concluded, is evidence, inferentially, to the contrary. On September 10th, when the plaintiff communicated his intention to Macullar, Parker & Co. that he was about to leave their employ, a representative of that firm replied that it was well he did so as the firm had been dissatisfied with the plaintiff for some time and were about to discharge him. Plaintiff testified that this occurred after he had written and mailed his letter of the same day apprising the defendants that he would present himself for duty on the 15fch„ We will, however, assume that it may be fairly inferred from the evidence that the occurrence alluded to was before the letter was mailed. It is claimed for the defendants that the failure to communicate the occurence, and the acceptance of their proposition to employ him, with knowledge of the occurrence, was a fraud by the plaintiff upon them. We do not think that the facts may be so regarded, notwithstanding the remarks of Macullar, Parker & Go.’s representative, and for aught that 'appears, it was still the plaintiff’s honest opinion that but for his voluntary departure from Macullar, Parker & Co.’s employ he could have continued therein. Hext, it was contended for defendants that there was evidence tending to show that shortly before severing his connection with Macullar, Parker & Co., the plaintiff, while on business for his firm, had been in “bad company ” at Cleveland Ohio, and that fearing the fact would come to the knowledge of his employers, in which event he would suffer discharge from employ, he anticipated the discharge by resigning after securing employment with the defendants, and, therefore, that when he represented it to be his opinion that he could continue in tlie employ of Macullar, Parker & Go., if he so desired, he knew the representation to be false and misrepresented his opinion or belief. What was meant, however, by the “bad company ” into which the plaintiff had fallen, was left wholly to conjecture. It\ nowhere appears that the plaintiff was at fault, or -that he was guilty of indiscretion, or worse. Hence there was no evidence from which it could have been reasonably inferred that the plaintiff’s conduct, on the occasion referred to, was such that because of it, he might fairly havé been apprehensive of his employers’ displeasure after they had ascertained the facts, or of his discharge from their emplojL Upon the evidence, therefore, we are of the opinion that the case was properly disposed of by the trial justice, and as no other exceptions are urged for reversal the judgments at general and trial terms of the court below should be affirmed, with costs.

Daly, 0. J., and Pryor, J., concur.  