Pastore v. Priori , 79 N.H. 1 ( 1918 )

Although it is true, as the defendants contend, that the plaintiff cannot be held for the debts of the partnership contracted before he purchased an interest in it, it does not follow that the defendants' statements in respect to the business they were doing and their financial condition were not material representations, for both are matters as to which the ordinary man might wish to be informed before he decided to engage in business with them. The fact that each of the defendants gave the plaintiff his note for one third of the money advanced to carry on the partnership business is immaterial in so far as his right to recover the money in this proceeding is concerned, for the master has found that he was induced to advance this money by the defendants' fraudulent misrepresentations. In such cases it is permissible for the one defrauded to elect whether he will rely on the contract or proceed against the guilty parties in an action sounding in tort. The fact he has an adequate legal remedy, if it is a fact, is immaterial; for fraud is, in and of itself, a ground of equity jurisdiction. Curtice v. Dixon, 73 N.H. 393.

The statutes of this state provide that money paid as interest in excess of six per cent per annum may be recovered. P.S., c. 203, s. 3. The plaintiff's damages as assessed by the master should, therefore, be reduced by the sum of $137.50.

The plaintiff, upon filing the notes in question with the clerk, will be entitled to a decree (1) for $1,654.74, with interest from the date of the filing of this bill, as damages; and (2) that the partnership agreement is null and void.

Case discharged.

All concurred.