
    Frederick S. Harlow, App’lt, v. Hiram Le Brun, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 4, 1894.)
    
    1. Pleadings—Answer—Admissions.
    An answer, which impliedly admits the contract sued on, but avers that, it was procured by fraud, does not preclude the defendant, by such admission, from proving the fraud.
    2. Fraud—Opinion.
    False representations as to the cost of a chattel are not mere expressions of an opinion as to its value.
    3. Partnership—Fraud.
    A person who has been induce through fraud to enter into a partnership, will be relieved from such contract, though he proves no pecuniary damage.
    Appeal from a judgment in favor of defendant.
    
      Jesse Stiles, for app’lt; Edgar T. Brackett, for resp’t.
   Mayham, P. J.

This plaintiff brings this action for a dissolution of what he alleges to be a valid, existing copartnership between him. and the defendant, and for an accounting as partners. The complaint sets out written articles of copartnership. The answer does not deny the making of the written articles of copartnership, but impliedly admits the same, and sets up in a defense that he was induced to enter into such copartnership by the fraudulent representations of the plaintiff that a stock of merchandise-which he put into such copartnership cost the sum of $1,890.05, an undivided half of which would belong to the defendant under such articles of copartnership, and against which defendant put in the sum of $850 in cash and his notes to the plaintiff of $1,150; and alleges that the merchandise in fact cost the plaintiff but the sum of $1,134, which fact the plaintiff well knew at the time of making such representations, and of which defendant was wholly ignorant. The answer also alleges that under such supposed partnership he worked from the 18th day of October, 1893, to the 24th day of .March, 1894, for which his services were worth $12 per week, and for which he had received but $6 ; and that the fraud was not known to or discovered by the defendant until the commencement of this action. The defendant, in his answer, also demands that it be adj udged that there never existed any partnership between the plaintiff and defendant; that the articles be-vacated and set aside; that the notes or duebills be cancelled and set aside; and for the recovery of the money paid by defendant under such fraudulent agreement, and payment of balance due for the services of the defendant.

The trial judge finds upon, we think, sufficient evidence the-following facts: (1) “That on or about the 18th day of October,. 1893, the defendant entered into a written agreement of copartnership with the plaintiff to carry on a mercantile business at Sara-toga Springs, ÍT. Y., and purchased from the plaintiff an undivided one-half of a' stock of goods then owned by plaintiff for the sum of $2,000, $800 of which he then or thereafter paid in cash, and for the balance of which the plaintiff holds his note or, duebillr dated October, 1893.” (2) “ That to induce the defendant to enter into such copartnership agreement with the plaintiff, and to-purchase from the plaintiff the said undivided one-half of said stock of goods then owned by the plaintiff, the plaintiff represented to the defendant that he, the plaintiff, had paid for the Mabbett stock, so called, which formed a portion of the stock then owned by the plaintiff (one-half of which he sold to the defendant), the-sum of $1,890.05.” (3) “That said representation was false, and was known by the plaintiff to be so when he made the same, and he had not in fact paid said sum of $1,890.05 for said Mabbett stock, nor any other or greater sum that $1,136.80; and said statement was made by the plaintiff to the defendant to induce him, the defendant, to enter into said copartnership agreement to buy one undivided one-half of said stock.” (4) “ That in ascertaining the cost of the stock then on hand, owned by the plaintiff, and an undivided one-half of which he proposed to and did subsequently sell to the defendant, the parties took a list of bills of goods purchased by the plaintiff at the cost price thereof from the time he-•commenced business, and from the aggregate of such cost deducted the cost price o£ the good sold by him during the time he had so been in business; the difference being the cost of the goods then in stock, of which the defendant thus purchased an undivided one-half.’’ (5) “That the defendant relied on said representation of the plaintiff, and believed the same, and without the same he would not have entered into said copartnership agreement, or purchased the undivided one-half of- said stock of goods of plaintiff as he did do. (6) “ That the defendant did not discover said fraud thus practiced upon him by the plaintiff until after the commencement of this action.” (7) “ That before discovering the fraud thus practiced on him by the plaintiff, the defendant rendered work, labor, and services in said store thus operated by said copartnership twenty-two weeks, which services were worth $12 per week; and that the defendant admits receiving on account of said services the sum of $6 per week ($132 in all), apparently leaving a balance thereon of $132.” (8) “ It appeared upon the trial that a receiver of the property of the ñrm has been appointed in this action, and that .he has sold the tangible property thereof. ¡No evidence was given tending to shtiw the amount of the receipts from the business retained by the defendant; and thereupon it is found that said amount retained by him does not exceed the value of his services as last above found.” (9) “ The allegations of.fact stated in the complaint' are true, except as qualified by the above findings."

And as conclusions of law the court finds :

(1) “ That (owing to said false representation thus made by plaintiff to the defendant, and the fraud thus practiced by the plaintiff upon him, the defendant) said copartnership agreement was and is voidable, and the defendant is entitled to have the same set aside and annulled." (2) “That owing to such fraud and false representation of the plaintiff, the agreement by which the defendant bought and the plaintiff sold such undivided one-half of such stock of goods was and is voidable, and the defendant is entitled to have the same set aside and annulled, and to be re-; stored to whatever he parted thereunder." (3) “That the defendant is entitled to judgment against the plaintiff herein: (a) Declaring said partnership agreement and said agreement of purchase of such undivided one-half of said stock void, (b) Directing the receiver herein, after first paying any debts outstanding, and unpaid that were contracted during the existence of said copartnership, to pay, out of any funds in his hands, to the defendant, the sum of $800 (the sum thus paid him to the plaintiff), with interest on $750 thereof from October 18, 1893, and on $100 thereof from December 12, 1893 (amounting to the sum of $879.25). (c) Directing the plaintiff to deliver to the defendant the duebill of the defendant dated October 18, 1893p and now held by the plaintiff. (d) For the costs of this action.”

But it is insisted by the learned counsel for the plaintiff that, as the allegations of copartnership, as stated in the complaint, are not denied by the answer, they must, under the provisions of § 522 of the Code, be taken as true; and in support of that contention he cites Fleischmann v. Stern, 90 N. Y. 110. But it will be seen by an examination of that authority, and all the other cases cited in support of that contention, that they do not relate to a case where the contract or claim upon which the plaintiff seeks to recover had its inception in fraud practiced upon the defendant, which formed the inducement for the creation of this liability-charged in the complaint. That fraud vitiates all contracts as between the parties affected by it is a doctrine so elementary as not to require the citation of authorities. If the contract creating the copartnership had its inception in fraud, it was, as between the parties to it, void ab initia, and it revision will relate back to the time of making. The answer, therefore, while it did not deny the execution of the articles of copartnership, sets up the affirmative defense that they were void for fraud. The making of the articles of copartnership could not be truthfully denied in the answer, and a failure to deny their execution did not put the defendant, under the authority of Beard v. Tilghman, 66 Hun, 12 ; 49 St. Rep. 508, in a position that he could not set up in his answer matter which went to the validity of the contract. It was therefore clearly competent, under the defendant’s answer, to attack the articles of copartnership for fraud. In 2 Bullis, Partn., § 595, the effect of fraud upon the validity of a partnership is stated as follows:

“ A person induced to enter into a partnership by fraudulent misrepresentations, although he may have a dissolution on this ground, may also obtain a decree rescinding or canceling the partnership .agreement ab initia, even though the misrepresentations are not .such as would entitle him to an action for deceit. He can also have an action for deceit against .'the guilty party. In such cases the chancellor will administer complete relief by ordering repayment of all items advanced or expended by the complainant, and compensation and indemnity. This is not giving damages, but is a proper consequence of rescinding the contract; and the complainant has a lien on the assets for what he has paid in.”

It is also urged by the learned counsel for the plaintiff that, as there was no proof that the stocks of goods were in fact worth less than $1,890.05, therefore the defendant had not by the proof suffered any loss, and that he was not, therefore, entitled to any relief. The representation in this case was not a mere representation by the plaintiff of the value of the property, which at most could but be an expression of his opinion, and for which no action would ordinarily lie. Chrysler v. Canady, 90 N. Y. 272; Schnmaker v. Mather, 133 N. Y. 590 ; 44 St. Rep. 754. In such cases the party purchasing, or to whom the representation is made, has access to the open market to determine the value, and may exercise his own judgment as to the value. We think the rules are different where fraudulent representation is made by the vendor as to the cost of a chattel. In Fairchild v. McMahon, 139 N. Y. 290; 54 St. Rep. 495, O’Brien, J., sharply recognizes the existence of such distinction, and in discussing this question of a distinction between an opinion by the vendor and false representation as to its cost says:

“ But the question here is not one arising out of a representation as to value. The representation was with respect to a fact which might, in the ordinary course of business, influence the action and control the judgment of the purchaser, namely, the price paid for the property about to be sold by the vendor; * * * and so-we think a false statement with respect to the price paid under-such circumstances, which is intended to influence the purchaser, and does influence him, constitutes a sufficient basis for the finding of fraud; citing in support of that contention: Sandford v. Handy, 23 Wend. 260; Van Epps v. Harrison, 5 Hill, 63 ; Smith Countryman, 30 N. Y. 655 ; Hammond v. Pennock, 61 N. Y. 151; Goldenberg v. Hoffman, 69 N. Y. 326,

Nor can we agree with the contention of the learned counsel for the plaintiff that, as no pecuniary damage wag proved by the defendant, he is not entitled to any relief in this action. The relation of partners is one implying the highest degree of mutual confidence. By such relation each becomes the custodian, not only of the property, but to a great degree of the character and business standing of the other. For the court, therefore, in an equitable action, to uphold a contract consummated by fraud, and thus, as between the deceiver and deceived, to bind the property and character of the latter, would seem to be not only inequitable, but oppressive. Nor should the relation be continued until the .injured and deceived party has been subjected to actual loss, which he may prove, in dollars and cents. When he appeals to the court for relief, and establishes the fraud, he should be relieved from the hazard of a business combination into which he has been inveigled by fraud and misrepresentation. We think, therefore, that the trial court was right in declaring this contract .void and inoperative from its inception, and by the judgment of the court restore as far as possible the status quo of these parties. We have carefully examined all the exceptions taken by the learned counsel for the plaintiff to the- rulings, findings, refusals to find, and determinations of the trial judge, and find no error for which this judgment should be reversed.

Judgment affirmed, with costs.

All concur.  