11 N.Y. 374 | N.Y. Sup. Ct. | 1833
*The following opinions were delivered:
I can see nothing in the charge of the judge, at the circuit, which was calculated to mislead the jury. He certainly was right in saying that it was not material whether the recommendation through Wilson constituted, the only recommendation; that it was sufficient if the plaintiff was moved by that recommendation in giving the credit. It appears in this case that the letter of Hickcox, the merchant at Buffalo, was written in good faith, although it does not distinctly appear what the precise contents of that letter were; and there is no doubt that letter, as well as the false and fraudulent representation of Baker that he had beef coming to Wilson, had more or less influence on the mind of the person giving the credit; yet if the recommendation through Wilson was necessary to be superadded to enable Baker to obtain the credit, the defendant is as much liable for the damage sustained, as if that had been the only inducement to the credit. If the mind of the vendor as to giving the credit was nearly balanced, and the jury were satisfied that this fraudulent act of the defendant turned the scale, and induced him to part with the goods, he who was guilty of the fraud was properly holden to be answerable for the consequences thereof. Even where two persons, without preconcert, are guilty of fraudulent misrepresentations as to the credit of a purchaser, if the representations of both were necessary to induce the vendor to part with his goods, either might be made liable for the whole loss, as there is no contribution as between wrong doers. The fact that the clerk went to Wilson to obtain information as to the credit of Baker, although he had before seen the letter of Hickcox, and after inquiries had been made of one of the members of the firm to whom that letter was addressed, was of itself sufficient to authorize the jury to conclude he was not satisfied with the recommendation, whatever it might have been, which was contained in that letter; and in the language of the judge, that the mind of the vendor was moved in giving the credit, by the recommendation of the plaintiff through Wilson.
*What was said as to the right of the plaintiff to pursue the property, after the delivery thereof to Baker, on board the vessel, while on its transition from New York, could not have meant a technical right of stoppage in transitu, which can only be exercised before the delivery of the goods to the purchaser. But as the goods in this case were obtained by actual fraud, the vendor had an unquestionable right to pursue and reclaim them, not only on their transition from New-York, but at any time afterwards, until they got into
The facts in this case as detailed in the bill of exceptions, were unquestionably sufficient, if the declaration is properly framed for this purpose, to entitle the plaintiff to recover against the defendant, as a party to the fraud. The law, I consider, as settled in this state, that a fraudulent misrepresentation or an intentional deception of the vendor, by a third person, for the purpose of enabling the purchaser to defraud such vendor of his property, forms a good ground of action against the party who is guilty of making such misrepresentation, or practicing such deceit. It is a principle of natural law, which is constantly acted upon in courts of justice, to hold the accessaries, as well as the principal party, answerable to make restitution for the damages sustained by an unlawful or fraudulent act; and those are considered accessaries who, knowingly and intentionally, assist the principal party in doing the unlawful act, or in perpetrating the fraud. In this case the defendant was not satisfied with advising his nephew to do an act which, if prosecuted in due time, would probably have sent him to the state prison for obtaining goods by false pretences ; but he actually undertook to aid him in *this fraudulent and illegal act. The letter written by the defendant, although artfully drawn was undoubtedly intended to convey an impression to the mind of Wilson that Baker was a merchant of fair standing and worthy of credit, who was going to New-York to buy goods in the ordinary way of business. By this means he intended to induce Wilson to hold him out as such, to those who were intended to be defrauded of their goods, when the writer in fact knew that he was in failing circumstances, and that he intended to obtain the goods of the New-York merchants for the fraudulent purpose of subjecting them to executions which might be issued on the defendant’s judgments; and also to enable himself to compromise with his creditors, generally, by paying them a certain portion of their debts. The jury have found that this deceptive and fraudulent letter did accomplish the object for which it was intended by the defendant; and both reason and natural justice require that he should be held liable for the damage the plaintiff has sustained by that fraud.
It is not necessary that the defendant should have had any particular individual in view as the person who was to be defrauded. Although, if it had appeared that he wrote the letter with the intention of defrauding one person, and Baker had, without his consent, used it to defraud another, it is doubtful whether he could be made liable as an accessory to that fraud ; but when it appears he intended it should be used for the purpose of deceiving the persons from whom Baker might think proper to purchase goods, the defendant is answerable for the use which was made of the letter, although he might never have heard of the plaintiff until after the fraud was perpetrated. The observation of Lord Kenyon, in Scott v. Lara, 1 Peake’s N. P. R. 226, was proper, perhaps, when applied to that case. The declaration there alleged that the false allegation, as to credit, was made to Lindo, with intent to defraud the plaintiffs and to induce them to trust Valentine. But it appeared that Lindo made the inquiry as to the credit of Valentine, without informing the defendant that any person other than himself had any interest in the question, or that Valentine
The only remaining questions, therefore, are whether the declaration" in this case is properly framed to meet the proof given on the trial; and whether it is sufficient in substance, after verdict, to sustain an action. The first count is upon a false and deceitful affirmation by the defendant to the plaintiff, that Baker was a person worthy of credit, and safely to be trusted. This count, in itself, contains a good cause of action, but I think the proof on the trial did not support it, and that if there had been no other count in the declaration, it would have been the duty of the judge to have granted the motion for a nonsuit. If, therefore, both the other counts of the declaration are so defective in substance as not to be cured by the verdict, it is not a case in which the court could have authorized the verdict to be amended, by entering it upon the first count only. The proof, however, was sufficient to establish every thing which the plaintiff had alleged in the second and third counts of his declaration. And as the question as to the goodness of those counts does not arise upon the motion for a new trial upon the bill of exceptions, the decision of the supreme court in denying that motion with costs, was correct, and should be affirmed.
But there was also a motion in arrest of judgment, and in considering that motion, we must lay out of view every thing that took place at the trial, and examine the declaration, in *connection with the general verdict of the jury, in the same manner as if this bill of exceptions was not contained in the record; and, as general damages have been assessed, if either of the counts of the declaration is so defective, that no proof, which we can properly presume from the verdict, to have been given under the same, would constitute a good cause of action, the decision of the supreme court in refusing to arrest the judgment, must be reversed; but if the evidence given at the trial was equally applicable to counts which are good, as to those which are defective in substance, we may send the cause back to the supreme court, with liberty to the plaintiff to apply for an amendment of the postea, by the judge’s notes, or by the evidence as stated at length in the bill of exceptions ; and to enter the verdict and judgment in his favor upon the good counts only.
In deciding whether there was such a defect in substance in the declaration as rendered a judgment thereon in favor of the plaintiff erroneous, it was at the common law, material to inquire whether the question arose upon demurrer, or after judgment by default, or whether it arose after verdict. Many defects which in the first case would have rendered the declaration bad, in substance, would be cured by a verdict. Defects of this kind are now embraced by the seventh section of the title of the revised statutes relative to the amendment of pleadings and proceedings in civil cases. (2 R. S. 424.) The ninth subdivision of that section provides, that the judgment upon a verdict shall not be stayed, nor shall the same be reversed, for the omission of any allegation or
Although both of these counts were objected to as defective, upon the motion in arrest of judgment, yet it is evident, from the report of the case in the court below, that the defects were not pointed out with much particularity by the counsel. The attention of the court was principally directed to the question as to the plaintiff’s right to recover, upon the facts actually proved at the trial. It is therefore not surprising that these defects, particularly the one in the second count to which I have alluded, should have been overlooked by the chief justice, who delivered the opinion of the supreme court. I did not myself discover the want of that necessary averment in the second count until after the .close
By Senator Beardsley. It was contended, on the argument of this cause, that an action could not be sustained for fraudulently representing a man worthy of credit, whereby he obtained credit, and thus was enabled to cheat the person upon whose credulity he had practiced; in other words, that the principle established in Palsey v. Freeman, 3 T. R. 51, which had repeatedly been recognized by the supreme court of this state, and other American courts, had never been adopted by this court.
The very able opinion of the supreme court on this part of the case renders it unnecessary to discuss this question to any considerable extent, or to review the authorities. I fully concur in the correctness of the principle, that a person making a false representation as to the credit of a third, person, knowingly and with an intention to defraud, is equally liable where damages ensue, as he who makes a fraudulent representation in regard to the soundness or qualities of personal property. The latter proposition, I believe, has never been doubted, and it appears to me that the same principal will as well sustain the one as the other ; and in regard to personal property, the books are full of authorities that the fraudulent suppression of facts, where damages ensue, is equally actionable as a false and fraudulent representation. Our statute against obtaining goods by false pretenses, and rendering a party liable to indictment and severe punishment as a criminal, proceeds on a recognition of this principle ; and surely, if a party may be criminally punished for fraud, it is not carrying the principle to an unreasonable extent to hold him responsible in damages, where he has knowingly and intentionally defrauded, or aided another to commit a fraud.
I fully concur in the sentiment of the circuit judge, which was recognized by the supreme court, that, to maintain the, action, it was not necessary that the fraud complained of was the only inducement to the credit. If such fraudulent representation or fraudulent suppression of facts in the language of the circuit judge moved the party to give credit and to part with his goods, it was sufficient the defendant liable. Nor does it lie with a party who has been guilty of fraudulent representations, whereby a credit has been improvidently given, to say that the party practiced upon did not exercise due diligence—that he too readily yielded to the suggestions and became the dupe of those who intended to deceive him. If he has been over credulous, it is no justification to the party who has practiced a fraud, that a more wary adversary would have avoided it. Nor does it, in my opinion, change *the character of the transaction in this case, or the right of the plaintiff below to recover, whether the fact be that Addington’s letter first induced an assent on the part of Allen to sell, or subsequently to part with the possession by a delivery of the goods, or eventually prevented his pursuit to reclaim the possession which he had a right to do if he had been deceived and defrauded, and thus to disaffirm the contract.
Here most surely was evidence enough to justify the jury in believing that the whole was the result of a premeditated design on the part of Addington and Baker. They could not rationally have come to a different conclusion, and this too without relying upon the suspicious, circumstances testified to. by other witnesses. In this conclusion, I grant that they disregarded the principal part of Baker’s testimony, and it was right that they should do so. He was contradicted by Wilson and Havens ; he had imposed upon Hickcox in obtaining a letter of credit without disclosing his insolvency ; he had equivocated to Havens in answer to a question as to how much he owed in Albany, by telling him that he owed Starr $1500, when he in fact owed him $2200 and was owing other debts in Albany, amounting, in the whole, to $3500 or $4000. In addition to all this, he had contracted debts in New-York to about $4000, when he knew he was utterly unable to pay for the goods he obtained. Now, without necessarily relying upon the palpable contradictions between him and other witnesses, I confess that were I sitting as a juror, I should fell a strong repugnance to believe such a man, even if uncontradicted; and most certainly I should not, where he had purposes to subserve by misrepresentation. The jury were right in disregarding his testimony ; his conduct had been such, and his testimony such, as not to entitle him to belief. Viewing the whole then, as I suppose the jury did, as a premeditated device between the uncle and nephew to defraud, let us for a moment look at the letter to Wilson. Those who believed that Addington and Baker intended to cheat, would not expect a letter recommending Baker as being worthy of credit. Such a letter would defeat its object, as it would at once render Addington liable, on showing that he knew that Baker was insolvent; and Addington was lawyer enough to know it would not answer to write such a letter. Nor would it do to state that he had three heavy judgments *against Baker, ready to be put in force against any property he might purchase. Such a disclosure would have destroyed Baker’s credit, and defeated the object at once. The jury believed that Addington’s object in writing was to give Baker credit, and they had no right to expect a letter that would have a contrary tendency. It was perfectly in character with the plot, to write a letter that should have a tendency to induce credit, and not render the writer liable. It must be ambiguous ; a nephew, who had been started and continued in business for years, must coldly and cautiously be turned into an acquaintance. “ The bearer, Mr. Baker, is the man who I informed you, when at Utica, I had agreed with for beef, and would drive to the Palmyra establishment; he has had 327 barrels packed there, marked with my name, and forwarded to your yard the beef I have purchased.” And again : “ Mr. Baker is going to your place to purchase goods ; he has been a merchant some time at Aurora, Erie county—he has bought his goods at Buffalo, Utica and elsewhere heretofore. Any assistance you may give him by way of buying would be thankfully acknowledged, he being an acquaintance of mine.” This letter was probably all true, and yet it was well calculated to effect its object—to give Baker credit when it must be conceded he was unworthy of credit. It speaks of him as a merchant who for some
Could any man, whose standard of morals was not entirely debased, solicit the assistance of another, “ by way of buying,” for a man known to the writer as utterly insolvent, and about to stop payment—a man whom he had advised to get all the goods he could on credit, that the writer might avail himself of them for the satisfaction of his own debt, and who stood ready to pounce upon them with his three executions ? I answer no. An honest man could not have written such a letter, without disclosing the facts that Baker was insolvent and largely indebted; and yet it was contended, on the argument, that this letter was “ a fair business transaction.” I do not think so ; and the jury, in my opinion, could have come to no other conclusion than against the purity of the writer’s intentions. Had Wilson given credit to Baker after receiving this letter, can any one doubt that Addington would have been responsible ? I should imagine not. And how can it be otherwise with Allen, if he was induced to give credit from what Wilson said on the subject ? I think there is no difference in principle. Wilson informed Havens, Allen’s clerk, (which I hold was the same as if he had informed Allen personally) that he had received a letter from Addington, and from information derived from him relative to Baker, and with his knowledge of Addington, he would sell to Baker, if he were selling goods. Now Wilson was doing precisely what Addington desired and intended ; he was assisting him in the way of buying; he was giving him credit which he never would have done had he known of the existence of the judgments and Baker’s insolvency.
But it was contended, on the argument, that the evidence was not sufficient to warrant the assumption that Allen gave credit to Baker in consequence of this letter. The first answer is, that the question was fairly submitted to the jury, whose province it was to pass upon it, and who have found the fact that this letter did induce credit. It is not proved that Allen or his clerk saw it before the sale, nor is it necessary that they should have seen it. Wilson informed Havens that he *had received the letter, and that it had inspired confidence that Baker was worthy of credit; and Havens swears expressly that he “ took a recommendation from Wilson, who stated that he had received a letter from Addington, and on that recommendation, he sold the goods,” Allen being out and in while Baker was by buying the goods. Again, Havens swears that “ the reason Allen did not follow the goods was in consequence of the favorable impression from Wilson.” The question, therefore, whether the letter induced the credit, should be considered at rest, as the jury have found the fact; and I am not dissatisfied with their finding.
What I have said will in a great measure supersede the necessity of remarking at large on the motion for a nonsuit at the trial. The motion was made
This action, if sustainable at all, was most clearly one in which smart money ought to be allowed. It was wholly a question for the jury, and their verdict should not be disturbed unless the damages were grossly excessive.
The next and only remaining question in the present state of the cause is, the important point whether the declaration is such as to uphold the judgment. I have not deemed it necessary to cite authorities ; they are well collected and arranged in the opinion of the supreme court. The *general rule in relation to declarations is this : where the declaration discloses no right of action, the judgment will be reversed; where there are several counts, some good and some bad, a nolle prosequi may be entered on the counts that are vicious, and judgment may be entered on the others; but if a general judgment is entered where there is a bad count, the judgment will be reversed. I am free to _admit that the declaration in the present cause is unskilfully drawn. It would probably have been held bad on special demurrer, and possibly it might have been so held on a good general demurrer to the second count, but my impression is that a general demurrer would not have overturned it—my remarks shall be confined to that count, for it is considered most defective by the counsel for the plaintiff in error.
The question is, whether that count will sustain the judgment; whether it is rendered good by the verdict, if defective before ; and not whether it would have been good on general demurrer. A verdict will not cure a defective right, but it will cure a right defectively or imperfectly set out; or, in other words, if the declaration contains the substance of a right of action, although imperfectly set forth, yet, after verdict, it is cured and is good to uphold the judgment, because the court will presume that all defects were supplied by proof, before the jury would have found or the judge have sanctioned the verdict. Let us for a moment look at this second count. The substance, as I understand it, is this: that Addington, by a letter to Wilson, encouraged him to assist Baker to procure goods on credit in New-York, he, Addington, knowing that Baker was unworthy of trust and credit, and largely indebted to himself; that Wilson did in that behalf assist Baker to procure goods upon the credit of the plaintiff; and that the plaintiff, confiding in and giving credit to the letter and representations made by Wilson at the instance of Addington, and believing the same true, did sell divers goods of the value of $2000, on such trust and credit, to Baker; whereas, in truth, at the time the defendant wrote the letter, Baker was not a person safely to be trusted, and was largely indebted to the defendant, all of which was known to him; and the plaintiff avers that the defendant falsely and fraudulently deceived and caused *the plaintiff to be deceived in this: that at the time of writing the letter, and at the time of the sale and delivery of the goods, Baker was unworthy of credit,
I should indeed regret, if in this court of dernier resort, constituted for the protection of the rights and property of the citizen and to sustain the great principles of justice between man and man, the substance in controversy between parties should be sacrificed to form. Technical rules, I admit, must be preserved; but they more properly belong to subordinate tribunals than to this court of last resort. Parties, before they arrive in this court, have opportunities, in almost every stage of the proceedings, to raise and avail themselves of technical objections. Here they should not be encouraged or suffered to prevail, if we have a substance sufficient to sustain the superstructure. The jury, who have passed upon the facts, have pronounced Addington guilty of a base fraud; and the supreme court have approved of the verdict, and have said that *the law supports the action, and that the declaration is sufficient to sustain the judgment, and that too upon technical rules. I cannot consent to suffer the defendant to escape from what I consider a most righteous retribution, by means of legal subtleties that might or might not have been available at an earlier day and in another tribunal, had they been raised for decision by demurrer. That time has gone by, and after “ he has been weighed in the balance and found wanting,” by a jury of his country, he shall not, with my consent, go “unwhipped of justice” in this court, upon strained technical objections. I am therefore for affirming the judgment of the supreme court.
■ By Senator Edmonds. Upon the question of granting a new trial in this case, there does not appear to me to be much difficulty.
The circuit judge very properly refused the nonsuit. Whether the letter of Addington contained any false recommendation of Baker, as a man worthy of credit, and was written for the purpose of defrauding Allen, was a question very rightfully submitted to the jury. And whether that letter was ever seen by Allen, or any one acting for him, was entirely immaterial, if it was the means of inducing Allen to give credit, and its contents or purport had been communicated to him or his agent; and it seems to me to be equally immaterial whether the facts on which the credit was given were communicated to Allen or his clerk ; Allen was the person injured ; the communication to his clerk was a communication to him, and he was the only person to prosecute, The grounds on which the motion for a nonsuit was founded were untenable, and there is no error in this part of the case.
In the charge to the jury, the judge stated the true ground on which the action is to be sustained, if at all, to wit, that Addington had not disclosed the
In fine, without occupying space with a recapitulation and examination of all the questions raised by the counsel on the argument, and expressing once for all my acquiescence in the decision below, except so far as the same may be affected by any subsequent remarks, I conceive that the following questions are those alone upon which this case is to be determined by this court; and I shall therefore inquire, 1. Whether the evidence discloses any fraudulent conduct on the part of Addington, whereby Allen has been deceived and injured; 2. If so, whether that fraud assumes such a shape as to be the ground for an action; 3. Whether the cause of action has been properly spread out upon the record ; and 4. If it has not, whether the defect or omission is cured by the verdict.
First, as to the fraud. Baker was insolvent when Addington gave him the letter to Wilson. Addington knew it, and was then a judgment creditor of Baker’s to a large amount, with power “ to sell him out,” and close his business at any moment. The letter is guarded and cautious. It conveys, but only by inference, that Baker was largely engaged in the business of packing beef. It said that Baker had been a merchant some years at Aurora, Erie county, leaving the impression that Baker was still largely engaged in business; and while it asked Wilson to give Baker assistance, by way of buying, it carefully concealed the fact that Baker was a relative, intimately connected with him in his business transactions; that Baker was insolvent, and the writer of the letter his greatest creditor, with full power to sweep away all that he had. If Baker had gone to New-Yorkto buy goods for cash, this concealment would have been of no consequence. The assistance in buying, which Wilson could have then rendered him, would have been very different from that which he did render, and which it seems he expected he was to render. I will not stop to inquire whether Wilson was not engaged in a business of so entirely different a character, as to disqualify him from rendering any aid in buying for cash the goods that Baker wanted, nor to inquire what assistance in buying dry goods for cash, Baker, who had for some years *been engaged in the business, could expect to receive from a man engaged in packing beef. If we did make these inquiries, we should be satisfied, I think, that Addington did intend to aid his nephew in procuring credit, by concealing most important facts. But if any doubts were left upon our minds, the other testimony in the case must satisfy us, not only that Addington knew that Baker intended to buy goods on credit, and not for cash, but that Addington designed to aid him from fraudulent motives.
I refer now to the testimony of Mr. and Mrs. Steel and Pamela Hall. It was attempted on the argument to shake our confidence in the credibility of those witnesses ; but I apprehend that that is a question not open for discussion in this court; it was a question of credibility which is peculiarly within the province of a jury. Their finding is conclusive upon us, and we are not now at liberty to inquire whether this testimony is false or not. So far as our duty is concerned, it must be taken as true, and it shows that after Baker had gone to New-York, and probably while he was there, Addington knew that Baker could not pay what he then owed, much less any new debts he might contract; that he must fail; that his affairs were so deranged he could not get along; that he then owed Addington a considerable sum ; that Addington had
It was urged very strongly, on the argument, that there was no evidence that Addington had been acting, in obtaining credit of Allen, for Baker, or, in other words, that Allen’s clerk sold the goods to Baker, before he applied to Wilson. This is not, I apprehend, a question which this court ought now to entertain. It is a question of fact, that peculiarly belonged to the jury to decide. There was conflicting evidence upon this point, and it was the jury’s particular province to reconcile it. So far as the motion for a new trial depends upon this point, I think we ought to adopt the well settled rule of the supreme court, and permit the finding of the jury to control, unless it is palpable and undoubted that their verdict is *against evidence. Any other course would not only be an encroachment upon the province of the jury, but would convert this court into a tribunal of appeals upon questions of fact. One of the greatest advantages of the trial by jury, is the opportunity afforded to jurors of seeing the witness when he testifies, and of judging from his manner, his looks, his actions, and indeed his whole appearance and conduct, whether he is relating the truth. Many of these considerations, which do, and ought to influence jurors, can never be spread upon the record, and he who is to judge from the record, can never judge as accurately as the person who witnessed the manner in which the evidence was given; and if this court
Second, as to the remedy. It remains for us next to inquire whether the law has furnished any redress against the fraud disclosed in the case, and whether the facts as found by the jury will lay the foundation of a suit at law. One great object of the law, which we are called upon to administer, is the detection and punishment of frauds, and the protection of the innocent and unsuspecting from the depredations of the artful and designing. This forms our most interesting duty—this commends oiir legal system to the favor of an enlightened community ; and if the system is so far defective *that a case of palpable fraud, solemnly adjudged to be so by the proper tribunal, can avoid the proper measure of redress, it is high time that the rightful remedy be applied.
It has long been a well settled principle, that the suppression of the truth is equal to the expression of a falsehood in constituting fraud ; and it is equally well settled, that he who falsely, and with a view to the advancement of his own interest recommends another to be worthy of credit, when he knows him to be otherwise, is guilty of fraud for which a remedy exists in our courts. These two principles, in the absence of all authority, would he sufficient for the purposes of this case. Upon the latter principle we have authority. Pasley v. Freeman, 3 T. R. 51, was the first case. This was in 1789, and was followed by numerous cases and a series of decisions down to that now under consideration.. Eyre v. Dunsford, 1 East, 318. Haycraft v. Creasy, 2 id. 92. Hutchinson v. Bell, 1 Taunton, 557. Vernon v. Keyes, 12 East, 632, Day’s ed. p. 634, and note at the end of the case. Ashlin v. White, 1 Holt’s N. P. 387. 3 Com. Law R. 136. Tapp v. Lee, 3 Bos. & Pul, 367. 1 Selw. N. P. ed. of 1823, p. 489. Scott v. Lara, Peake’s N. P. 226. Harner v. Alexander, 5 Bos. & Pul. 241. Clifford v. Brooke, 13 Vesey, 131. Ex parte Case, 3 Vesey & Bea. 110. 2 Starkie’s Evidence, 470. The courts in our country have recognized the principle and sustained the action, so that, as Chancellor Kent justly observes, 2 Comm. 489 the doctrine of Palsey v. Freeman is now well settled, both in the English and American jurisprudence. Wise v. Wilcox, 1 Day’s R. 22. Russell v. Clark, 7 Cranch, 92. Patten v. Gurney, 17 Mass. R. 182. Upton v. Vail, 6 Johns. R. 181. Young v. Covel, 8 id. 25. Gallagher v. Brunel, 6 Cowen, 346. The foregoing cases all proceed upon the ground of false representations, or expressio falsi. The cases of Hart v. Tallmadge, 2 Day’s R. 381, Eyre v. Dunsford, in 1 East, and Bruce v. Ruler, 2 Man. & Ryl. 3, 17 Com. Law R. 290, proceed on the same doctrine, and apply the principle to cases of suppressio veri, where the party acted in obtaining credit for another, but concealed some fact material to the goodness of that credit. These cases establish this doctrine: that where a person, with a design to deceive and defraud, makes a favorable Representation of the credit of a third person, knowing it to be false, or makes
It was urged, on the argument, that the cases to which we were referred, from Pasley v. Freeman down to the present time, had all occurred since the adoption of our constitution, and were not therefore binding upon us, and that this court was now called upon for the first time to sanction this doctrine. Be it so; yet I am prepared to adopt it as a part of our jurisprudence. There is no characteristic of the common law more valuable than that which enables it to accommodate itself to the growing wants of the community, and above all to afford adequate remedies for the new forms which fraud is made to assume by the cupidity and ingenuity of man ; and while all our religious, moral and social duties teach us that if any one becomes an actor in deceiving another, if he designedly lead him by misrepresentations to do acts which are injurious, he ought to compensate for the injury he has thus inflicted—the principles of the common law require from courts of justice the legal remedy to enforce this obligation. I can see, then, in this doctrine, nothing to deprecate, but much to approve and sustain.
Third. Is the declaration defective in setting out the cause of action? The first count' is on a fraudulent representation, and it is not contended that the evidence supports that count. As to the second and third counts, we are not to examine them *with the same critical eye with which we would view them if brought before us on demurrer. The question is, shall we establish a wrong and dangerous cause of action by sustaining that which is fairly presented by the pleadings, and can we properly understand the matter complained of in the declaration, as stating that the defendant by his letter to Wilson induced the plaintiff to give credit to Baker, and fraudulently deceived him ? If so, how did he deceive ? By falsely representing Baker to be worthy of credit ? No; but by concealing the fact that he was unworthy of credit. The letter contained no affirmation of Baker’s worthiness of credit, and he could not have deceived him in any other manner, under the circumstances, than by concealing his unworthiness of credit; so that if the declaration had contained the averment that the defendant concealed from the plaintiff the fact that Baker was unworthy of credit, it would confessedly have been perfect. Upon demurrer, the omission of this averment would doubtless have been fatal; and whether it would be fatal on a motion in arrest of judgment, is now the question before us.
Fourth. If, then, the omission of this averment is a defect in the pleading, is it cured by the verdict ? The rule is this : that where there is any defect, imperfection, or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required on the trial proof of the fact, so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict; but if
Nor can I see any hardship to the defendant, arising from the application of this rule. If the declaration had been so far defective, as not sufficiently to apprise the defendant of the precise character of the charge which he was called upon to answer, his remedy was by demurrer; and if he had resorted to it, he would have found in the rules and practice of the court a sufficient protection against this inconvenience ; or if the evidence should establish a different cause of action from that which by the pleadings he was called upon to defend against, an adequate remedy was provided in the motion for a nonsuit. But if he permitted both these opportunities to pass, without attempting to take advantage of an error so palpable as it is averred this is, but went on, notwithstanding, and tried the experiment of a trial on the merits, I cannot feel the force of the appeal which he may now make to us to save *him from the consequences of his own misjudgment. He has chosen his own tribunal for the decision of his case; he did not ask the supreme court to decide it upon demurrer; he did not seek a decision by the circuit, judge upon a motion to nonsuit; he demanded a trial on the merits by a jury; he lulled his adversary into security as to the defects now complained of, and subjected him to all the expense of a trial; and now, when the decision on the merits is against him by a tribunal of his own selection, I know of no principle of justice or equity which compels us to listen to his complaints. He comes before us convicted of a gross fraud ; and after having led his adversary through various courts at great expense, he now asks us to reverse the decision which has been made against him, not on the ground that the evidence does not warrant it, but because of a formal defect, a technical omission, which every principle of fairness and equity required him to set up at the very first opportunity, and in a much earlier stage pf the cause. I am not willing to acknowledge the pro
I am therefore of opinion that the judgment of the supreme court ought to be affirmed.
By Senator Tract. This is an interesting case in both aspects in which it is presented for the consideration of this court; and there is, I confess, greater intricacy and uncertainty in some of the questions it involves, than I had anticipated.
As a decision, either on the bill of exceptions or on the motion in arrest of judgment, demands, more or less, an examination of the principle how far a false representation of a person’s trustworthiness subjects' the party making it to an action, I shall first briefly examine it.
The frequent and elaborate discussions had upon this principle in courts of great learning, and the diverse opinions held by eminent lawyers in regard to it, would make it seem presumptuous for me to say that it involves no real difficulty. But after a patient attention to the argument of this case, and carefully consulting the authorities cited, I am constrained to say that I have not discovered reasons for regarding the doctrine of the leading case of Pasley v. Freeman as new in principle, or any way justifying the grave doubts which for a long time prevailed in regard to it. If I have not mistaken the principle on which that decision rests, it is one coeval with the moral law, and must have been sanctioned in some form ever since the institution of courts of justice. It is a plain deduction from that universal proposition which is recognized at the first organization of society, that he who does an injury to another, either from motives of profit to himself, or of mere malice, shall be held liable to respond the damage he inflicts. It is the very foundation principle of all social security, and a well deserved reproach would it be to the judicial institutions of a country, that they were incapable of giving it effect. I agree with Sir James Mansfield, that there never was a time in the English law, when an action might not be maintained for so gross a wrong as that of designedly ^inducing a person by false representations to give credit to one not worthy of it, and in view of profiting by it himself. One of the oldest maxims tobe found in the books, is, that although “ fraud without damage, or damage without fraud, gives no cause of action, yet, where these two do concur, there an action lietb.” 3 Bulstrode, 95. And we are informed by
But although the law is thus provident of remedies, it is not to be understood that the violation of every social or moral duty will afford the ground of an action ; for it is not every act which of itself is dishonest or immoral, that in the legal sense of the term is an injury. It even may happen, that a person shall be damnified by an act of another which was in itself wrongful, without having a remedy against him ; for an act may be wrongful, and not be legally fraudulent. Perhaps fraud, in its legal signification, is a wrongful act done with a wrongful intent, and therefore the proposition that fraud and damage concurring give an action, is not the same proposition as that wrong and damage will sustain an action. The technical word injuria means not simply a wrong act, but a wrong act with a wrong intent; and with diffidence I suggest that much of the opposition to Pasley v. Freeman has arisen from Lord lienyon having confounded this distinction, and attempted to push the doctrine so far as to sustain an action wherever wrong has produced damage, whether designed to produce it or not. His just notion that all laws stand on their best and broadest basis, which go to enforce moral and social duties, inclined him to the conclusion that a person guilty of the immorality of telling a lie should be responsible for all the damages which the lie occasioned, although he did not design or contemplate that any such consequences 'would follow. But this rule, however right in ethics, has not yet obtained at law. It did not have the sanction of the court in the case referred to ; for although that judgment was maintained, yet all the judges except Lord Kenyon agreed that an action could not be supported for telling a bare naked lie—that is, for saying what was false, whether knowingly or not, if said *without design to injure any person. If a doubt existed that the peculiar views of Lord Kenyon did not control this decision, it is dispelled by the subsequent case of Haycraft v. Creasy, 2 East, 92, in which case, although Lord Kenyfln was disposed to adhere to his former opinion, all the other judges, Grose, Le Blanc and Lawrence, agreed that it was not sufficient that the defendant’s represen- ■ tations were false, but they must also be proved to have been made malo animo.
Le Blanc, justice, says : “ The law, as laid down in Pasley v. Freeman, went no further than this ; that where a party with a design to injure another, makes a false representation, in consequence of which another is damified, he shall answer in damages.” This construction of the decision seems afterwards to have prevailed universally in the English courts, for we find Lord Ellenborough ruling in Dawes v. King, 1 Starkie’s R. 61, that to sustain the action, it must be shown that some deceit was used for the purpose of putting the party off his guard and preventing him from being watchful; and again, in Ames v. Millward, 2 Moore, 713, the whole court agreed that an intention to deceive was necessary to support the action, and quoted with approbation the remarks of J. Le Blanc, as restricting the decision in Pasley v. Freeman to its true principle. In this state, the cases of Upton v. Vail, 6 Johns. R. 181, Young v. Covel, 8 id. 25, and Gallagher v. Brunel, 6 Cowen, 350, recognize the doctrine in Pasley v. Freeman, or defined in Haycraft v. Creasy. It will appear from all these decisions, that although an action grounded on the fraudulent misrepresentations of persons not parties to the contract appears to have its origin in Pasley v. Freeman, yet in principle it harmonizes with the old action of conspiracy, and the action of deceit between the contracting parties ; that to sustain it, the same circumstances should concur as to support an action for deceit between contracting parties—that is, fraud in the defendant
The hostility which some distinguished judges, and particularly Lord Eldon, entertained against the doctrine of *Pasley v. Freeman, was founded principally in the opinion that it tended to the evasion of the statute of frauds, or at least to the support of a principle inconsistent with the scope and object of that salutary statute. This, without doubt, is an evil which may be justly apprehended from the encouragement and multiplication of suits of this nature ; but still it is not such an evil as courts have the right to avert, by overthrowing or refusing to give operation to general principles of law. The statute of frauds does not profess to change any existing rules of moral or legal obligation, except by defining the character of the proof, which shall be required under certain circumstances to establish that such obligation exists. The statute is not designed to limit the general proposition that fraud and damage concurring will sustain an action, but merely to define the proof that in certain cases shall be necessary; and except in the cases specified, the statute can have no effect. The action for fraudulent misrepresentations, if within the policy, is not within the terms of the statute, and therefore is left to be supported by that species of proof which, without the statute, has always been held sufficient to establish any extent of moral delinquency whatever. If experience shall prove that the frequency of these actions, and the looseness of the proof by which they are sustained are working a public mischief, it will become the duty of the legislature to interpose, as the British Parliament has already found it necessary to do, and require that recommendations for credit shall be in writing to entitle them to be received in evidence. In the mean time, it will remain the duty of courts to give effect to known legal principles, without being deterred by the anticipation of possible mischiefs. The case being then founded rightly in principle, it remains to be examined whether the pleadings and proceedings in it are sufficiently regular to sustain the judgment. And first as to the pleadings.
It is contended for the plaintiff in error that the second and third counts of the declaration are so defective that the judgment must be arrested, according to the well acknowledged principle that judgment cannot be rendered on a general verdict, under a declaration containing bad counts. As it is equally fatal whether both the second and third counts, or *only one of them is bad, I have confined myself to considering the second count alone.
But before entering into its particular consideration, I will present briefly some general rules of pleading, which, though well known, cannot be kept too directly in view, whenever a question of this nature is to be examined. The declaration should contain a specification, in methodical and legal form, of the circumstances which constitute the plaintiff’s cause of action; all the facts necessary, in point of law to be stated with such precision, certainty and clearness, that the "defendant may know what he is called upon to answer. 1 Chitty’s Pl. 248, 255. 3 Wendell, 134. Facts are tobe stated, and not inferences, or arguments, or matters of law. Com. Dig. tit. Pleader, C. 78. And in all cases, those facts which are descriptive of the cause of action must be introduced upon record, in opposition to arguments or inferences. Cowp. 683. It is a maxim too, in pleading, that every fact shall be taken most strongly against the party pleading it, for it is to be intended that every person states his case as favorably to himself as possible. 1 Saund. 259. Co. Litt. 303, b. It is insisted, that if the second count be tested by these rules, it will be found
I have not succeeded in finding a case that exactly illustrates this particular view, for the reason, I think, that a declaration framed on the principle of the one in this case was never before presented for the grave consideration of a court. But the case, 2 Shower, 435, which was cited and approved, 3 Maulé & Selw. 114, is somewhat analagous. It was in slander, where a count alleging that the defendant “ uttered certain words which imputed insolvency to the plaintiff,” was held bad after verdict, for the reason that the words uttered should be set out. In Evertson v. Miles, 6 Johns. R. 138, it was *held, that in a declaration for fraud in the sale of a horse, the general words “ contriving and fraudulently intending to injure,” &c. together with an averment that the defendant “ craftily and subtil!y deceived,” &c. would not supply the want of an averment that he “ falsely and fraudulently represented the horse to be gentle, knowing him to be vicious.”
But if this count stated, what clearly it does not, that the plaintiff gave the credit to Baker in consequence of representations made by the defendant, and that those representations were untrue, and known to be untrue when they were made, yet there is still wanting an indispensable averment, which is, that the defendant made the representations with an intention to deceive and defraud the plaintiff. It has been seen in the cases already cited, and especially in Ames v. Milward, 2 Moore, 713, that the mere assertion of a falsehood by one party, although producing damage to another, will not sustain the action unless the intention to defraud is also proved. This intention, therefore, should be distinctly alleged in the declaration for it constitutes the very gist of the action. In Bayard v. Malcolm, 2 Johns. R. 550, Mr. Senator Clinton forcibly remarks.
“ To say that the plaintiff need not state the very fact which constitutes his right of action, is not only repugnant to the dictates of common sense, but is counter to the whole current of authorities. The books all agree that something must be expressly and substantively charged, against the defendant, that is fraudulent.”
It is urged, however, that noth withstanding this count might have been bad on demurrer, yet that it is aided by the verdict, and a distinction is attempted between the effect of a general demurrer and a verdict. Such a distinction doubtless exists to some extent, but I think not to the extent contended for, and at any rate does not apply to the present case. Conceding that the established rules of law authorize, and justice and public convenience require, that the principle of a verdict curing defects in pleading should be liberally applied, yet there are limits to this rule beyond which courts are not justified in going. The very idea of pleading at all, supposes the necessity of a party’s stating those facts which
The bill of exceptions, also, presents objections as fatal to the plaintiff’s right to maintain this judgment as those found in his declaration. I proceed to examine them, because I shall be better satisfied to have the cause tried over again, after the pleadings are amended, than simply to arrest the judgment. It is apparent that the testimony of the Steels had a controlling influence in producing the verdict; and yet, allowing to *it full credit, its bearing on the case is of questionable importance. The case seems to have been too much regarded in the nature of an action for conspiracy, where, the conspiracy on the part of the defendant being established, he becomes liable for all the acts of his coadjutors ; but this is not an action for conspiracy, but for false representations. The defendant is not charged with wrongfully influencing Baker, but with wrongfully influencing the plaintiff himself; and consequently he is not liable for Baker’s fraud, unless he connected himself with it some other way than merely by counselling him to commit it. Steel proves only that the defendant confessed that he had advised Baker to commit a fraud, but he does not prove that the defendant had done or intended to do anything to assist Baker to perpetrate it. The question is, what false representations did the defendant make of Baker’s credit ? for however great may be his moral culpability in the transaction, something more must be shown to sustain this action. It appears to me, therefore, that, for every purpose but that of showing the defendant’s intention, which does not become material till illegal acts are proved, as much other testimony is required to convict the defendant as though Steel’s testimony was not in the case. The only act of the defendant which was proved, is his letter to Wilson ; for his advice to Baker, however immoral, had no influence upon the plaintiff to induce him to credit Baker. Whether the letter should and did have this influence of persuading the plaintiff that Baker was worthy of credit is to be decided from the
Admitting that the jury might have been justified in construing the letter to contain or to authorize a recommendation, which is going far enough, yet this did not justify the judge to assume the fact, and on this assumption to allege another proposition which was wholly unfounded unless the first was clearly established. The charge virtually excluded from the jury the consideration whether the letter contained a recommendation, by asserting that it was the duty of the defendant to have communicated certain facts within his knowledge relative to Baker’s circumstances, and that his withholding them rendered him equally liable as though he had communicated a falsehood; that “ the suppression of such information would of itself be not only evidence of falsehood, but of a fraudulent intent by the defendant, to enable Baker to obtain the goods from the plaintiff.” If full force is given to the rule that suppressio veri is equivalent to expressio falsi, yet it cannot legitimately be extended so far as to make the suppression of one fact proof of the expression of another; but such is the reasoning, or at least the effect of the charge. Because the defendant did not communicate facts to show Baker unworthy of credit, it is assumed by the judge that he represents him as worthy of credit. But did he represent him to be worthy of credit ? This was a fact for the jury to decide, and that by what was in the letter, and not by what was out of it. If the letter contains no recommendation, then there was no duty on the defendant to communicate any thing of Baker’s embarrassments, and his not doing so affords no evidence of fraud. The principle of suppressio veri relates to the suppression *'of facts which would contradict or qualify those which are expressed. If one represent another as honest, he need not say he is in debt; or if he say he is rich, he is not bound to add, he is knavish. In this case, what is the thing expressed which the thing suppressed would contradict or qualify 1 Unless the letter recommended Baker’s pecuniary responsibility, there is no reason why the defendant should state that he held judgments against him. It is not easy to point to such a recommendation in the letter, and yet the assumption that it is there, is the ground on which the court charges, not only that the suppressions are proof of the defendant’s fraud, but that the defendant “ was equally liable for what Wilson said in consequence of not receiving that information, as he would have been, had he written to the plaintiff himself.” This disguises the preliminary and more important inquiry, which is, not what Wilson said because he did
The charge is also exceptionable in saying, that although the plaintiff might have been influenced to give credit to Baker by other circumstances, “ yet, if he was moved in giving the credit by the recommendation of the defendant, through Wilson, it was sufficient.” This is giving an alarming latitude to the doctrine of liability for false representations ! and, in its application, would inevitably overthrow a well established principle of law ; which is, that in actions of tort, it is necessary *that the damage should be the natural and direct consequence of the act of the defendant. 3 Wendell, 271. 8 East, 1. 2 Stark, Ev. 872. 19 Johns. R. 298. The principle of the charge in this respect is, that if the defendant “ was moved in giving the credit” in any, no matter how small a degree, by the defendant’s act, it is the same as if it wholly controlled him. Without attempting the metaphysical distinction between a direct cause and the causa causans of the schools, it may be made very plain that a fact may have an influence in producing a conclusion of the mind, notwithstanding the same conclusion would have been produced without the aid of that fact. It is possible that what Wilson said made some impression on the plaintiff’s mind, but it is probable that without this impression, Hickcox’s letter and other circumstances would have produced the same result. What, therefore, should have been submitted to the jury was, whether Wilson’s communication so far influenced the plaintiff as that without it he would not have given the credit to Baker. By excluding this consideration from the jury^ it allowed them to charge the defendant with damage which they may not have believed he occasioned.
I think the judge erred also in 'charging that the plaintiff “ had a right to pursue the property after the delivery and while it was in transition,” and therefore was equally entitled to recover, whether the defendant’s recommendation induced him to sell the goods or prevented his pursuing them. It was not a case where the right of stoppage in transitu existed ; but if it was, it would be confounding all the principles and purposes of pleading, to allow the plaintiff to recover under his present declaration. The term stoppage in transitu presupposes that the property is not delivered, or at least that it has not yet come to the hands of the other party. But in this case all the proof shows that the goods passed directly from the plaintiff to Baker, who was on the spot to receive them, and that there was no space of time when they were in transition. The supreme court agree that “ the right of stoppage in transitu had nothing to do with the case but they ^overlook the consequence that if it had not, then the judge’s charge was necessarily erroneous and calculated to mislead the jury. The proof leaves it at least doubtful whether the goods were not delivered to Baker before the plaintiff saw Wilson or ever heard of the defendant. If this was so, then the plaintiff’s case was not made out, for he did not give the credit in consequence of the defendant’s represen
Whatever anxiety courts may feel to restrain frauds, they must not, for the sake of punishing the guilty, break over those salutary rules of law and evidence which wisdom and experience have established, and which form the only safeguard for the innocent. It is possible that injustice has not been done to the defendant below, yet it is not certain but that it has been ; and it is cer tain that it may and probably will be done to others, if the present judgment is maintained, and the principles on which it is founded are allowed to become the established law of the land. After the length which I have felt it my duty to go in examining this case, I will not enter into general considerations that press on my mind, why this species of action should not be too much encouraged, and especially why courts, in their anxiety to punish one description of frauds, should be careful not to offer facilities for the perpetration of other frauds more mischievous, because more difficult to prevent. It is in the power, and, to use the language of Chief Justice Marshall, “ It is the duty of the individual who contracts with one man on the credit of another, not to trust to ambiguous phrases and strained constructions, but to require an explicit and plain declaration of the obligation he is about to assume.” But it is not in the power of any man to protect himself, if a blind and wilful confidence in representations, not calculated to impose upon ordinary prudence and sagacity, is to form the basis on which faithless memories *and interested testimony may establish a claim to an unlimited amount.
Í am for reversing the judgment and remitting the record that the pleadings may be amended and a new trial had.
On the question being put, Shall this judgment be reversed ? the members of the court voted as follow :
In the affirmative—The President, The Chancellor, and Senators Armstrong, Cart, Deitz, Edwards, Gere, Griffin, Lansing, Quackenboss, Tracy, and Westcott—12.
In the negative—Senators Beardsley, Conklin, Crofsey, Edmonds, Fisk, Gansevoort, Halsey, Macdonald, Sherman, and Van Schaicic—10.
Whereupon the judgment of the Supreme Court was reversed, with costs ; and the Court resolved that the third count in the declaration was sufficient after verdict to sustain a judgment, and directed the record to be remitted to the supreme court, with liberty to the plaintiff there to apply to amend the postea, either by the notes of the circuit judge, or by the evidence set forth in the bill of exceptions, so as to apply the verdict to the third count, and to render judgment thereon ; and in case that court shall refuse such leave, then that a new trial may be awarded by that court, on the application of the plaintiff below, and that he be at. liberty to apply to amend his declaration before the awarding of a venire de novo.
