Castleberry v. Scandrett, No. 45

No. 45 | Ga. | Jun 15, 1856

By the Court.

McDonald, J.

delivering the opinion.

Taking the complainant’s history of this case, and what ground is there for the interposition of a Court of Chancery?

[1.] He had purchased of the defendant a stock of goods. He agreed to give him first costs, exclusive of freights; and the first cost was to be ascertained by reference to the original invoices; and complainant was to give his notes at three, six and nine months in payment. The invoices were not produced, and the goods were not marked, yet the complainant agreed to proceed with the purchase and make up the new invoice from the memory of the defendant, on his promise to look up the bills and make every thing right. The amount being ascertained, the complainant gave to the defendant his three notes according to the contract. In the contract and before the giving of the notes, it was agreed that the complainant should have sufficient time to raise the money from the sale of the goods to pay for them. The time specified in the notes may have been, in the judgment of the parties, sufficient for that purpose. He alleges again, that customers objecting to his prices and refusing to buy, he was led to inquire of other merchants, and found that the goods had been invoiced to him at retail prices, and not at original cost. Why did he wait until he purchased the goods and gave his notes for them before he informed himself of their value ?

If he purchased them, depending on his own judgment, when he had no knowledge of such things, and subjected himself to imposition, and was, in consequence of that, imposed upon by his own incompetent judgment, he cannot have1 relief in a Court of Chancery. A man’s own folly, to deal with his eyes open, with a party more experienced, with the subject of the contract before him, and to rely on his statements of cost and value, with every means afforded him to-form an opinion of its quality and value by an inspection of it, will not entitle him to relief in Equity. It is not like the misrepresentation of the annual value of the rent of premises put in market. Here the complainant chose to, go on and complete the contract without the production of invoices which the opposite party was bound to produce if he had not waived their production; and he did not complain until he found a difficulty in making sales, and he then proceeds to inquire of others in regard to their prices. The information he thus obtained was not necessarily evidence of imposition by defendant. Other merchants may have purchased at lower rates.

But he alleges that some of the goods, when opened, were discovered to be damaged and inferior. He does not state the quantity, value or description of the goods thus damaged. There is no allegation that he did not examine the goods, or that he could not examine them before he purchased.

He states that he had great confidence in the defendant, and did not suppose that he, being an old merchant, would have taken advantage of his inexperience to defraud him, and that he refused to produce the old invoices to correct the new-' one by which he purchased. Notwithstanding this allegation, complainant certainly gave his notes after the invoice was taken, the goods estimated and the amount ascertained'. He was satisfied, or why did he not, before the consummation-.of the bargain, by giving the notes, require the production^ .of the original invoices ? The notes, he says, were sued without allowing time to sell the goods to meet them; and that suit was instituted in September, 1854,

[2.] The notes bare date 1st October, 1858. If the contract had been,. that he was to give longer time than that • specified in the notes, to allow complainant to raise money for their payment from the sale of the goods, what time was • he to give ?

There is none specified in the bill. It is indefinite on that subject. What decree could a Court of Chancery make in such case ? What time should the Court say was time suffi- - cient to make the sale ? The Court might, left to its own conjecture, suppose that three, six and nine months was time enough. It will not make a contract for the parties. The bill shows that one of the notes had been due at least eight, months; the second, five months; and the last, two months,, the time the suit was commenced, and no payment had been-made on either. There was great indulgence on a mercantile paper.

The amended bill alleges, that he would have made it a condition of said notes, that they should not be paid until the said goods were sold; but that he was mistaken as to the-necessity of inserting such a condition therein. It is nowhere alleged that there was any such condition in the conttact; and if there was none, he could not have inserted it as a condition in the notes.

The extent to which the allegations in the bill go is, that the defendant would give him time to raise money from the ■ sale of the goods to pay the notes; and not that the notes • were not to be paid until the goods were sold.

The plain construction of this affair is, that the defendant had a stock of goods which he desired to sell; that complainant ' purchased them without understanding the business in which he was about to engage, and did not know the value of' the goods ; that he had an opportunity of examining them, and instead of looking for himself, chose to rely on the statement of his adversary; and that he gave his notes according to his contract, after taking the stock and without requiring the production of the invoices. The promised indulgence on the notes, if it extended beyond their maturity, did not enter into the contract, and was without consideration. The complainant shows that he made an injudicious contract, and that he yielded points in the progress of the business, that would have been of great advantage in protecting him from the imposition of the defendant, if he meditated a fraud.

Turning from the bill to the answer, we find that all the-complainant’s grounds upon which he asks the equitable interposition of a Court of Chancery, are denied. One circumstance of suspicion, to which I will presently allude, it is true, is disclosed by it, but not of that face, against the positive denials of the answer, to induce us to hold that the Chancellor violated the rules of equity, or the justice of the case, by dissolving the injunction.

The defendant answers, that all the original invoice bills, in his possession- — defendant stating at the time, that for some of the goods he had no invoices — were deposited in a drawer in the complainant’s store-room, of which ho had notice, and was requested to compare them with the bills of sale made out by the defendant; that they remained there about eighteen days for the complainant’s examination, after which time he requested the complainant to give him his notes, according to his contract, as he had had sufBcient time to examine them; and that the complainant stated that he was satisfied and gave his notes. Defendant denies that there was any contract in regard to time, as charged in the bill, and denies the allegations of the bill, specially as to the facts constituting the fraud.

[8.] The circumstance to which I adverted above, is found in the answer of defendant, that he took possession of the original invoices left- with the complainant, with his consent, and that he destroyed them to prevent an unnecessary accumulation of papers. If every thing was fair, he could have had no use for them. They would not have added to his papers if they had been left with the complainant; and they might have been of use to complainant. The positive denials - of the answer, throughout, of all the allegations of complainant’s bill, which are intended to fix fraud on the defendant, are not, however, overcome by this extraordinary conduct in regard to the invoices. This circumstance, itself, would not warrant the retention of the injunction, when the inference to be drawn from it is positively denied.

' The complainant does not allege that it is necessary for him to have a discovery from the defendant, to enable him to • sustain his legal defence; and his defence, as far as it is pro- - per for it to be made, is available at law. On a motion to . dissolve an injunction on the coming in of the answer, the answer is to be taken as absolutely true. It may, however, impeach itself, and not be entitled to credence in the opinion of the Chancellor; and in that event, the injunction might be, retained, though the answer might be full.

Judgment affirmed.