Fred R. Badger, Appellant, v. Edwin G. Pond, Respondent

Fred R. Badger, Appellant, v. Edwin G. Pond, Respondent. Third Department, June 25, 1907. Fraud — false representation — damage. 'in an action founded upon false representation it must be shown that damage was caused thereby. When in order to secure a prior indebtedness, the debtor gives a chattel inert-' gage and after default a bill of sale of the same property, a portion of which was subsequently seized by the Federal authorities as smuggled, the creditor cannot maintain an action founded on fraudulent representations of title by the debtor. The indebtedness being prior to the mortgage, the creditor parted with no property by reason of the representation as to title,- and hence his damage-was not caused thereby. Appeal by the plaintiff, Fred R. Badger, from a judgment of the County Court of Franklin county in favor of-the defendant, entered in the office of the clerk of said county on the 21st day of June, 1906, upon the dismissal-of the complaint by direction of .the court after a trial before the court and' a jury, and also from an order entered in said clerk’s office on the 21st day of June, 1906, denying the plaintiff’s motion for a new trial made upon the minutes; Upon the 4th day of April, 1899, the defendant being indebted to the plaintiff in the sum of $912.40, gave to the plaintiff lfis note, and to secure the same gave to him a chattel mortgage "upon his stock and personal property. This chattel mortgage covered all of his personal property. Thereafter, upon ■ the 24th day of April, 1900, having failed to pay the note and chattel mortgage, the ffefepcj^nt execiifecj to the plaintiff a bill of sale of this. property. After the property was taken by the plaintiff under the bill of sale, a horse and a cow were seized by the governmental officials as having been smuggled in from Canada, and were sold. The plaintiff thereby lost the benefit of the value of these articles and property which were included in the chattel mortgage and in the bill of sale. This action was-then brought by the plaintiff' against the. defendant to recover damages for fraud in having falsely represented this horse and cow as his property and free from any claim. The complaint, was dismissed 'at- the trial,. and from the judgment entered upon such dismissal, as. well- as from, the order denying the motion for a new trial,' this appeal has been taken. John P. Kellas, for the appellant. A. B. Cooney and R. M. Moore, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: The complaint was dismissed upon the trial upon the ground that all right accruing under the chattel mortgage was merged in the bill of sale, and for any fraud exercised in procuring the taking' of the chattel mortgage, the defendant cannot be held liable as in the bill of -sale was conveyed simply such right, title and interest as the defendant had in the property. We are not prepared, entirely, to agree to this proposition. But, nevertheless, we think the judgment was right as we are unable to find any damage flowing from the false-statements made by the defendant in the chattel mortgage. The evidence of the plaintiff is to the effect that lie relied in taking the mortgage upon the statement in the mortgage itself to the effect that the defendant was the true and lawful owner. , All of this indebtedness, however, has accrued prior to the signing of the mortgage by the defendant, and prior, therefore, to the" representation which is made the basis of the fraud in this action. To support an action for false representation the damage must have been caused thereby. Bo property has been parted with by reason of any false representations to the'defendant and without proof of such fact no legal damage is shown. The judgment should, therefore, be affirmed,, with costs. Judgment unanimously affirmed, with costs. -