The action was- brought originally against Simon H. Stern, and upon his death his executrix was substituted.
■ The allegations of the complaint tend to present two theories of liability, (1) for deceit by decedent in selling and. delivering his own stock in the Pennsylvania Furnace Company to plaintiff, instead of stock in the same company which he induced plaintiff to agree to subscribe for and led plaintiff to believe had been subscribed for in his behalf therein, and (2) for the recovery of the purchase price paid for the stock upon the theory that its purchase was induced by-false and fraudulent representations, upon the discovery of which the contract had been rescinded and the return, of the stock tendered, and a return of the purchase price demanded. Upon the first theory no recovery could be had, for no damages were shown, and as the stock delivered and accepted all stood in the name of the decedent, plaintiff wat chargeable with knowledge 'of his ownership. The plaintiff, however, upon the trial, in effect, elected to stand -upon-the second theory, although his counsel made some claims not essential thereto which tended to obscure- the real issue.
It is claimed at the outset that the complaint fails to state a cause of action upon the theory of rescission. I am of opinion that it is sufficient. It is alleged that plaintiff' knew the decedent to be a man of character and pecuniary responsibility, in whom he had full confidence; that on or about the 1st day of May, 1899, plaintiff, at the instance of decedent, subscribed for $100,000 of the capital stock of the Pennsylvania Furnace Cdmpany and paid decedent $50,000 therefor; that with a view to inducing plaintiff to purchase said stock, decedent made false and fraudulent representations to plaintiff, in substance as follows, all of which plaintiff believed and relied upon, and all of which were false, tb the knowledge of decedent, to wit, 'that decedent represented to plaintiff, in May, 1899, that he and others had organized the Pennsylvania Furnace Company, of which he was a director, shareholder and largely interested, to' acquire iron ore rights and,furnace property in Pennsylvania, and to miné, manu- • facture and sell iron ore or pig iron; that “ said company was the big*823gest thing ever gotten up; ” that stock in the company at $50 per share would double in value and probably be worth three times as much, and would be a splendid investment, well knowing at the time that it would diminish in value and become comparatively worthless ; that the company was capable of and would produce 60,000 tons of ore and pig iron annually, from which it- would pay dividends, whereas the company was incapable of producing, and never produced, tliat quantity of ore annually or paid but one dividend, and that was paid Out of capital and not o.ut of profits. It is further alleged that decedent was personally familiar with all the facts relating to the property concerning which he made the representations, for he owned it individually until the organization of the company on the 18th day of September, 1899, and then on September 22, 1899, by deed, conveyed and transferred it to the company foils,000,000, the property' being actually worth not more than $250,000. It is further alleged that plaintiff duly tendered back the stock and demanded the return of the consideration paid, together with interest thereon. The allegations fully set forth that the purchase of the stock was. fraudulently induced by material false representations. It was conceded that decedent sold and delivered his own stock to plaintiff and recovered and returned the ’ consideration therefor..
One Isaac Stei-n, brother to plaintiff, was' called as a witness in his behalf, and testified that he was present and heard a conversation between plaintiff and decedent, in which he participated, the latter part of April or beginning of May, 1899, in the private office of Stern Brothers, over their dry goods store on West Twenty-third street, Hew York. He was asked to state the conversation. Counsel for decedent asked leave to examine him preliminarily, and developed the fact that lie agreed the day of the conversation to purchase from plaintiff $20,000 of the stock, and subsequently paid him therefor after .receiving it, but that the purchase was rescinded by mutual agreement, and he returned the stock to plaintiff and received his money back, and had no interest in any of the stock or in' the result of the litigation. Counsel for decedent- thereupon objected to the conversation on the ground that the witness was incompetent under section 829 of the • Code of Civil Procedure, upon the theory that plaintiff had derived his title through the wit*824ness. The objection was sustained, and counsel for plaintiff duly excepted. The court ruled broadly that the witness was not competent to testify to any conversation between the parties, and, in effect, informed counsel that it was unnecessary to ask specific questions relating to the conversation, limiting it to the stock which plaintiff did not sell to the witness; and counsel for plaintiff again excepted. This evidence was clearly competent. The witness did not purchase any of the stock of decedent. He was as competent to testify to the conversation as if he had never purchased any of it from plaintiff. The fact that he purchased part of it from plaintiff and subsequently rescinded the contract and returned it, left -the case as if he had never purchased it. Plaintiff’s cause of action against decedent -was in no manner derived through the witness. He stands upon the original transaction; Of course, he could only rescind in so far as he held the stock, but he did hold most of it all the time, and presumably, on his allegations, he held it all when he elected to rescind. However, that would only go to the quantum of the recovery, and would not affect the existence of his cause of action on account of the stock which he did not' transfer to the witness.. Plaintiff was thus erroneously deprived of an opportunity to present his evidence of fraudulent representations and develop his case, for, of course, he was incompetent, to give the evidence himself, and a new trial must be awarded.
The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Pattebson, P. J., and Claeke, J., cqncurred; Ingeaham and Scott, JJ., dissented.