France & Canada Steamship Corp. v. Berwind-White Coal Mining Co.

Page, J.:

The amended complaint sets forth three separate causes of action. The first is to recover damages for false and fraudulent representations alleged to have been made to induce the plaintiff to charter a vessel to the defendant for the purpose of carrying a cargo of coal from Hampton Roads, Va., to Rio Janeiro, Brazil. It is alleged that the defendant represented to the plaintiff that the defendant then had the necessary Federal export license; that the defendant was informed and knew that it would be necessary for the plaintiff to charter such vessel from a third party and to recharter the vessel to the defendant and obligate itself to pay such third person the charter hire of the vessel; that relying upon the statement and representation so made by the defendant, the plaintiff chartered a vessel from a specified third party for a round trip from the United States to the eastern coast of South America upon certain terms and conditions specified in the charter party, a copy of which is annexed to the complaint; that thereafter, and in reliance upon the statement and representation, the plaintiff entered into *107two contracts with the defendant, copies of which are annexed to the complaint; that pursuant to the contracts the vessel was sent to Hampton Roads, Va., and delivered by the owners to the plaintiff on August 30,1917, and plaintiff thereupon notified the defendant that said vessel was ready to take on the cargo and proceed on the voyage, and the loading of said vessel was completed on August 31, 1917, and was in all respects ready to sail. It is then alleged that the representation that the defendant had procured the export license was known to the defendant to be false; that the representation was made with intent that the plaintiff should rely thereon, and that the plaintiff did in fact rely thereon; that solely by reason of the fact that the statement and representation were false, the vessel could not and did not sail from Hampton .Roads, Va., until September 2, 1917, at two o’clock p. m.; that under the terms of the charter party with the third person, the plaintiff was compelled to and did pay to the owners of the vessel $1,877.78 as charter hire for a 'period equal to the time during which said vessel was so detained; by reason whereof the plaintiff was damaged in said sum, which the defendant has not paid, although payment has been demanded. The second cause of action is for a balance due for freight agreed to be paid by defendant to plaintiff on said voyage of ninety-two dollars and thirty-six cents.

The third cause of action alleges that by the terms of the contract it was provided that if said vessel should be detained longer than required for loading, the defendant should pay demurrage at the rate of $1,250 per day; that the vessel was loaded and ready to sail on August 31, 1917; that she was detained until September 2,1917, in consequence of the defendant’s not having procured the export license; that by reason thereof the defendant is indebted to the plaintiff in the sum of $2,447.90, with interest from September 2, 1917.

The defendant demurred to the complaint upon the ground that causes of action had been improperly united, in that a cause of action for false and fraudulent representations of the defendant, in reliance upon which the plaintiff entered into a contract, is united with an action upon the contract; and that they are inconsistent with each other.

It is well settled that an action for damages for fraud and *108deceit, whereby a person was induced to enter into a contract, which is an action in tort, and one upon the contract cannot be united in the same complaint. (Edison Electric Ill. Co. v. Kalbfleisch Co., 117 App. Div. 842; Lord Electric Co. v. Barber Asphalt Paving Co., 165 id. 399, 403.) The respondent relies upon Taft v. Bronson (180 App. Div. 154). In that case, however, although the complaint in form stated two causes of action, in fact it stated but one. (Fileman v. Mooney, 184 App. Div. 535, 536.) As the court said in Taft v. Bronson, “ Evidence of such contract might properly be given in proving the alleged fraud, even if the complaint contained only the cause of action because of such fraud. It was a part of the alleged fraudulent transaction.” Some confusion prevails in the opinion from the application of authorities holding that a party may pursue as many remedies as he has, providing they are consistent and concurrent to a provision of the Code providing what causes of action may be united in a single complaint. (Cf. Bowen v. Mandeville, 95 N. Y. 237, 240; Code Civ. Proc. § 484.)

The first and third causes of action are inconsistent. The proof of one disproves the other. The theory of the first is that, by the fraudulent representation that the defendant had an export license upon which the plaintiff relied, he was induced to enter into a contract in reliance upon such representation, and he suffered damage by a delay occasioned by the fact that at the time no such license had been granted. The theory of the third cause of action is that the possibility of delay was foreseen, and an express agreement made to pay a liquidated sum for such delay. The proof of this provision in the contract would disprove an essential allegation in the first cause of action, that the plaintiff entered into the contract relying on the representation that there would be no delay.

The demurrer should have been sustained. The order will be reversed, with ten dollars costs and disbursements and the demurrer sustained, with ten dollars costs, with leave to the plaintiff to serve an amended complaint on payment of said costs.

Clarke, P. J., Laughlin and Merrell, JJ., concur; Smith, J., dissents.