Benjamin Woodbury vs. Sidney H. Deloss.
The first count in a complaint contained a cause of action to recover damages for fraud and deceit in the sale, by the defendant, to W., M. and D., of an interest which the defendant represented that he owned in a lease of oil lands. It alleged the falsity of the representations; the procurement by means of them of the price agreed to be paid for the interest; that by reason of the fraud, the plaintiff sustained damages; and that, by the agreement, the defendant was to convey the interest in the lease to D., for the benefit of the purchasers; and that the conveyance was made, accordingly. It was further alleged that W. and M. had assigned to the plaintiff all their rights, *502legal and equitable, in and to the money paid to the defendant for the interest in the lease, and to all claims they, and each of them, had against the defendant, growing out of the purchase of such interest; and that D. had released the defendant from all claims he had against the defendant, growing out of the matters aforesaid.
Held, on demurrer, 1. That the said first count''contained a cause of action for the deceit; and that it was assignable.
2. That inasmuch as only two of the three purchasers of the interest in the lease assigned to the plaintiff, and as the purchase was by the three jointly, there was a defect of parties; buf the same was covered by the allegation in the complaint that D. had released the defendant from liability to him.
The same complaint contained a second cause of action, on what was called an implied covenant, that the defendant had the interest in the said lease that he pretended .to sell to W., M. and D. Held that the second count contained no cause of action.
In the third and fourth counts it was alleged that the defendant was indebted to the plaintiff for money had and received- by the defendant of W. and M. “ on &c. as above stated;” held that this averment incorporated the allegations of the first count into the third and fourth counts, and rendered the latter, counts for money had and received by- means of false and fraudulent representations; and that as the liability grew out of the same transaciton, as was alleged, with that contained in the first count, they were properly united, and contained causes of action.
APPEAL from, a judgment of a Spepial Term, overruling demurrers to the complaint.
The first count in the complaint contains a cause' of action to recover damages for fraud and deceit in the sale to William Woodbury, Benjamin ‘McLean and John P. Darling, of an interest which the defendant represented that he owned in a lease of oil lands, in the State of Pennsylvania. The falsity of the representations, the procurement by the means of them of the price agreed to be paid for the interest, and that by reason of the fraud the plaintiff sustained damages, are averred.
By the agreement the defendant was to convey the interest in the lease to John P. Darling, for the benefit of the purchasers, and the conveyance was made accordingly.
It is further alleged that Woodbury and McLean *503assigned to the plaintiff all their rights, legal and equitable, in-and to the money paid to the defendant for the interest in the lease, and to all claims they and each of them had against the defendant, growing out of the purchase of such interest. And Darling released the defendant from all claims he had against him, growing out of the matters aforesaid.
The complaint contains a second cause of action on what is called an implied covenant, that the defendant had the interest in the said lease that' he pretended to sell to Woodbury, McLean and Darling.
There is a third count, for money paid to the defendant by Woodbury, and another for the money paid by McLean; which sums they have severally assigned to the plaintiff.
The defendant demurred to the complaint on the grounds, among others, that the court has not jurisdiction ; that Darling should be joined as plaintiff; and that several causes of action have been improperly united in said complaint; and it does not state facts sufficient to constitute a cause of action.
The Special Term overruled the demurrers, holding that the first count of the complaint contained a cause of action for deceit in inducing Woodbury, McLean and Darling to enter into the contract. And that there was-no misjoinder of causes of action, because there was no other cause of action stated in it.
The defendant appealed from this decision.
By the Court, Mullir-, P. J.
The court below was right in overruling the demurrers. The first count contains a cause of action for the deceit, and it was assignable. (Johnston v. Bennett, 5 Abb. N. S. 331. Haight v. Hayt, 19 N. Y. 464.)
As but two of the three purchasers of the interest in the lease assigned to the plaintiff, and as the purchase was by them jointly, there is a defect of uarties, un*504less it is covered by the allegation in the complaint that Darling released the defendant from liability to him.
[Fourth Department, Generar Term, at Buffalo,
June 3, 1873.
Mullin, Talcott and M. D Smith, Justices.]
It was decided in Baker v. Jewell, (6 Mass. 460,) that if a defendant, liable to several persons, for damages for a tort, settles with one of them, the action is thereby severed, and the other injured parties may maintain actions for their damages.
It was also held, in that case, that a false and fraudulent affirmation, made by a seller of an estate to two or more purchasers, is, in its nature, a several tort to each, and they cannot join in actions therefor. If this is the rule in this State, the plaintiff could maintain the action as the assignee of either Woodbury or McLean.
In any view of the question, the first count contains a cause of action.
I agree with the court below that the second count contains no cause of action. But I cannot agree that the third and fourth counts do not contain causes of action.
It seems to me that the allegation that the defendant is indebted to the plaintiff for money had and received by the defendant of Woodbury and McLean “on&c. as above stated,” incorporates the allegations of the first count in the other containing such reference, and renders them counts for money had and received by means of false and fraudulent representations. (1 Chit. Pl. 113, 385.) And as the liability grows out of the same transaction, as is alleged, with that contained in the first count, they are properly united. (Code, § 167.)
The order of the Special Term is affirmed; the defendant to have leave to answer.