7 Wend. 9 | N.Y. Sup. Ct. | 1831
By the Court,
To aid in determining whether any cause of action is stated in this declaration, it will be useful to look at the cases which have been decided, and
In Scott v. Lara, Peake’s cases, 226, at nisi prius, Lord Kenyon decided that to subject the defendant to an action by the plaintiff, the defendant must make the communication for the purpose of imposing upon the plaintiff, and that the plaintiff relying upon the information so received, sustained an injury.
In Eyre v. Durnsford, 1 East, 327, it was held that a person inquired of as to the circumstances of another, is not bound to give any answer; but if he answers the inquiry, he is bound' in justice and common honesty, to give a fair representation of what he knows. Fraud may consist in the suppression of the truth, as well as in the assertion of a falsehood; and the action lies m either case, if the intention to deceive exists, and is the cause of the suppression of the truth, or the assertion of the falsehood. And in Burton v. Loyd, 3 Esp. R. 207, Lord Kenyon said the action was founded on all the moral rules which ought to govern society ; that when a character was asked of any man in trade, to whom the party inquiring was about to give credit, all the circumstances within the person’s knowledge ought to be stated, and the party left to judge for himself, whether he would give credit or not. In Hamar v. Alexander, 5 Bos. & Pul. 241, it appeared that the false representation was made with a view to obtain goods upon credit, and that they might he consigned to a house in which the defendant was connected. Sir J. Mansfield thought it a case
The first case in this court was that of Ward v. Center, 3 Johns. R. 271. There the defendant had said to the plaintiff’s clerk that one Brown was a responsible man, worth $5000 ; that he had been punctual in his payments as far as he, the defendant, had had dealings with him. On this recommendation the clerk sold the goods to Brown. The defendant did not communicate the fact that he had a bond and warrant to confess judgment for upwards of $2000. It was proved that judgment was entered on this warrant a few days after the sale of the goods, an execution issued, and the goods levied on and sold. Before the goods were sold, the plaintiff stated to the defendant that he had falsely recommended Brown, and offered to take back the goods, which was refused. After a verdict for the plaintiff, a motion was made for new trial, on the ground that the verdict was against evidence. Van Ness, justice, seems to doubt as to the correctness of the case of Pasley v. Freeman; but the motion was denied, on the ground that the defendant did not communicate the fact of his having a bond and warrant to confess judgment. Spencer, justice, expressed himself satisfied with the verdict. The case of Upton v. Vail, 6 Johns. R. 181, brought before the court directly the question whether the action would lie. In that case Upton, the defendant in the court below, had a judgment bond against one Broyrn, and went with him to Vail, to whom he recommended him to be as good as any man for the amount sold to him; about two weeks after, Upton issued an execution, and sold all Brown’s property, and among the rest the property purchased of Vail. A recovery was had by Vail against Upton in the court below, and that judgment was affirmed in this court. Kent, Ch. J. delivered the opinion of the court, and after referring to the English cases, expresses his decided approbation of the principle on which the action is sustained, and adds: “ But independent of the English cases, I place my opinion upon the broad doctrine that fraud and damage coup, led together will sustain an action. But the simple fact of misrepresentation, unconnected with fraudulent design, is not
The evidence in support of the allegations in the declaration consists of the letter, and the circumstances which shew the fraudulent intention. So far as the letter purports to state facts it is not denied but what they are truly stated; the fact that the defendant had purchased Baker’s beef, was true; the fact that Baker had been a merchant some years at Aurora» was also true, though his mercantile business had not been
The judge in his charge stated that the facts set forth in the letter were true; but that this action was founded on a fraudulent concealment of other facts, and a fraudulent intent to enable Baker to obtain goods. That the defendant was liable for Wilson’s recommendations, which were given for want of correct information. In this I think the judge was correct. If the defendant meant any thing by his letter, it was to enable Wilson to aid Baker in procuring goods on credit; he was bound, therefore, to give him all the information, which would enable him to judge whether Baker could be safely trusted. He knew that Wilson had no goods to sell, such as Baker wanted ; he therefore vitually constituted Wilson his agent to give to others the information contained in the letter, as embracing all the facts which ought to be communicated to a merchant about to sell goods to Baker on credit. In my opinion the judge was correct, too, in telling the jury that though other recommendations had influence on the plaintiff’s mind, yet if the recommendation of the defendant through Wilson was that which procured the credit, the plaintiff was entitled to recover.
I am inclined to think the doctrine of stoppage in transitu has nothing to do with this case; but as the plaintiff’s right of recovery is sustained upon other grounds, what was said on that subject did not prejudice the defendant. The ground assumed by the judge in answer to the application of the defendant’s counsel, is the doctrine sustained by all the cases—that a false representation with a fraudulent intent is enough, when it appears that the plaintiff relied on that representation, and