Rinaldi v. Barasch

THE COURT.—

This is an appeal by the plaintiff from a judgment in favor of the defendant, American Surety Company of New York. Briefly stated, the facts are: The defendants, Barasch and Baldoechi, were real estate brokers and the American Surety Company of New York was the surety upon the bond of Barasch. The brokers inserted an advertisement in an Italian newspaper, offering to sell an

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interest in a manufacturing business, the purchaser to work in the business and to receive forty dollars a week and profits, and to invest $1500. Plaintiff, who could not read nor write and had never been to school, according to his own testimony, which appears uncontradicted in the record, called in response to this advertisement. Barasch took him to a “shack” used for a furniture factory and told him that a profitable business was being operated there. Barasch sold plaintiff an interest in this “shack,” lot and business and assured him that if the business did not pay, he might have his money returned to him. The testimony of the plaintiff was: “He (Barasch) said, ‘This place don’t look good, and that is the price, but you see yourself, the house is not worth much, it is an old house, but it make good business, and then you see yourself,' and we went to see, and I didn’t believe the business was good—the house was nothing—the money buys a lot and a shack and everything.” A man named Stone was the owner of the business and Barasch was selling as his agent.

Plaintiff paid the $1500 and received a receipt therefor. Before receiving a transfer of the property and a day or so after paying his money, plaintiff testified that Barasch told him that the business and property was not a good purchase ; that he (Barasch) could not recommend it. Plaintiff, therefore, said he would not buy it, and demanded the return of his money. Barasch would not return it. Upon repeated demands for his money by plaintiff, Barasch insisted upon transferring to plaintiff in lieu of his money a one-sixth interest in the real estate business which was operated and owned by him. Plaintiff protested and said he wanted his money, and Barasch told him if he wanted his money, he could sell the one-sixth interest in the real estate business. Plaintiff insisted upon his money, saying that he knew nothing of the real estate business and could not read nor write. Barasch, however, transferred to plaintiff this interest in the real estate business instead of returning his money as demanded by the plaintiff, and this transfer and the retransfer by plaintiff to Barasch, hereinafter mentioned, is the evidence relied upon in the case to show that the transaction was one between plaintiff and Barasch, individually, and not between plaintiff and said defendant, as agent for another.