Opinion · New York Court of Appeals
Deerfield Communications Corp. v. Chesebrough-Ponds, Inc.
68 N.Y.2d 954
- Type
- Opinion
- Court
- New York Court of Appeals
- Jurisdiction
- New York
- Date
- 1986-11-13
- Topic
- general
holding that a representation of present fact which was “the inducement for the contract” and which was “collateral to” that contract, could support a claim of fraud | holding that a representation of present fact which was “the inducement for the contract” and which was “collateral to” that contract could support a claim for fraud | holding that a fraudulent misrepresentation "which was the inducement for the contract[ ] ... was neither duplicative" of a contract claim, "nor barred by the general merger clause contained in the contract." | holding that a false promise to not resell goods outside a specific geographical area "constitute[d] a misrepresentation" for purposes of fraud where geographical restrictions were not contained in the written agreement for the purchase of those goods | holding that there was no duplication of damages in a claim for fraudulent inducement based on material misrepresentations that were collateral to the contract and were inducement for promisee to enter the contract | stating that a promise made with a preconceived notion of not performing it constitutes a misrepresentation | holding that fraud claim was not duplicative of breach of contract claim where buyer made misrepresentations that it would abide by certain geographical restrictions in order to induce seller to enter into the contract | indicating that fraudulent inducement claim was not duplicative of contract claim where it alleged misrepresentation of a present fact “collateral to, but which was the inducement for the contract.” | stating that a promise madé with the preconceived notion of not performing it constitutes a misrepresentation | finding that a misrepresentation regarding a present fact may give rise to a claim for fraudulent inducement separate and apart from a breach of contract claim | holding claims not duplicative when the misrepresentations “of present fact, not of future intent” were collateral to the contract | finding that “a promise [not contained in the written agreement] made with a preconceived and undisclosed intention of not performing it . . . constitutes a misrepresentation” for purposes of a fraudulent inducement claim | finding that “a promise [not contained in the written agreement] made with a preconceived and undisclosed intention of not performing it . . . constitutes a misrepresentation” for purposes of a fraudulent inducement claim | affirming lower court’s denial of motion to dismiss fraudulent concealment counterclaim where another counterclaim sounded in contract and the only alleged damages were purely economic | affirming denial of motion to dismiss counterclaim for “fraud in the inducement in that plaintiff had no intention of abiding by the geographical restrictions orally agreed to” | upholding a fraudulent inducement claim brought alongside a breach of contract claim where damages sought were not du-plicative | affirming a lower court’s denial of a motion to dismiss the plaintiff’s fraudulent concealment counterclaim where another counterclaim sounded in contract and the only alleged damages were purely economic | stating “a promise ... made with a preconceived and undisclosed intention of not performing it ... constitutes a misrepresentation.” | refusing to dismiss fraud claim alleging "a misrepresentation of present fact, not of future intent" which misrepresentation was "collateral to, but which was the inducement for the contract" and thus not duplicative of contract claim | affirming a lower court's denial of a motion to dismiss the plaintiff's fraudulent concealment counterclaim where another counterclaim sounded in contract and the only alleged damages were purely economic | refusing to dismiss fraud claim alleging “a misrepresentation of present fact, not of future intent” which misrepresentation was “collateral to, but which was the inducement for the contract” and thus not duplicative of contract claim | Distinguishing between “promissory statements as to what will be done in the
Citator
- Cited by
- 78 opinions
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed, with costs.
Defendant stated three counterclaims: (1) for breach of contract in failing to pay the balance due of the purchase price, (2) for breach of contract in violating geographic restrictions on resale allegedly agreed to orally, and (3) for fraud in the inducement in that plaintiff had no intention of abiding by the geographical restrictions orally agreed to. The second counterclaim was dismissed because the restrictions were not contained in the written contract and the jury returned a verdict of $170,000 on the first counterclaim and $130,000 on the third. The Appellate Division affirmed, without opinion.
The trial court properly denied plaintiffs motion to dismiss the third counterclaim. As we stated in Sabo v Delman (3 NY2d 155, 160) "a promise * * * made with a preconceived and undisclosed intention of not performing it, * * * constitutes a misrepresentation”. Involved in defendant’s third counterclaim, therefore, is not a mere promissory statement as to what will be done in the future (see, Channel Master Corp. v Aluminum Ltd. Sales, 4 NY2d 403; Sabo v Delman, supra). It alleged rather "a representation of present fact, not of future intent” (Citibank v Plapinger, 66 NY2d 90, 94) collateral to, but which was the inducement for the contract, and thus was neither duplicative of the second counterclaim (see, Sager v Friedman, 270 NY 472, 479) nor barred by the general merger clause contained in the contract (Danann Realty Corp. v Harris, 5 NY2d 317; see, Citibank v Plapinger, supra).
Moreover, review of the jury charge makes clear that there was no duplication of damages in the jury’s awards on the first and third counterclaims. The measure of damages recoverable for being fraudulently induced to enter into a contract which otherwise would not have been made is "indemnity for [the] loss suffered through that inducement” (see, Sager v Friedman, 270 NY, at p 481, supra). Here the jury was properly allowed to award damages to defendant on the third counterclaim for the costs to locate the goods, the costs to repurchase the goods, storage fees and disposal costs, and under the first counterclaim for the balance remaining due on the purchase price for the goods sold and delivered.
Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.