Bates v. Youngerman

| Mass. | Jun 29, 1886

Gardner, J.

The plaintiffs offered oral representations or assurances made by the defendant Rubinouvz, in regard to the credit and pecuniary responsibility of the defendant Younger-man, that Youngerman might obtain credit. This was offered for the purpose of showing that the plaintiffs were fraudulently induced to make the sale to Youngerman. This evidence comes within the provisions of the Pub. Sts. c. 78, § 4. The false representations were made concerning the defendant Younger-man, with an intent to induce the plaintiffs to part with their property to Youngerman on credit. This is within 'the prohibition of the statute. Kimball v. Comstock, 14 Gray, 508. Wells v. Prince, 15 Gray, 562. Mann v. Blanchard, 2 Allen, 386. McKinney v. Whiting, 8 Allen, 207. In their offer of proof, the plaintiffs did not go far enough to take it out of the limitations of the statute.

At the time of the sale, the defendant Youngerman, in the presence of Rubinouvz, made a written statement “ as a basis of credit for present and all future purchases.” The manager of the plaintiffs’ firm in New York testified that, “ after the statement was made and signed, I gave the defendant Younger-man a line of credit, relying solely on said statement and the oral representations or assurances of the defendant Rubinouvz.” These representations or assurances were rightly excluded, as we have already shown. There is nothing in the bill of exceptions to show that any part of the written statement was untrue. It is difficult to see what evidence of misrepresentation or fraud was laid before the jury to show a conversion of the plaintiffs’ property by the defendants, or either of them.

If the property was obtained from the plaintiffs by the defendant Youngerman under the form of a sale, but in fact by misrepresentation and fraud, and the defendant Rubinouvz obtained it of Youngerman with knowledge of the fraud, the plaintiffs could maintain trover for it, because the possession both of Youngerman and of Rubinouvz was wrongful, and constituted a conversion. Stevens v. Austin, 1 Met. 557. In the case at bar, we find no evidence of a conversion by the defendants, jointly or severally.

Exceptions overruled.