This is an action of detinue. Cohn Bros. & Co. sold the goods sued for to J. A. McKinstry, as
Of the charges requested by the plaintiffs and refused, those numbered 2 and 4 were bad because addressed to the immaterial inquiry referred to above, and also for the reasons given in the case of Richardson Bros. & Co. v. Stringfellow, (in this volume,) with reference to requests for like instructions.
Charge 3 refused to plaintiffs is in the following language : “If the jury find from the evidence that McKinstry &Co. concealed their financial condition from plaintiffs at the time said goods were purchased, then that would be equivalent to a false representation upon the part of J. A. McKinstry & Co. as to their financial condition, if they further find that said concealment was done to deceive plaintiffs, aud did deceive them.” This instruction would probably have been understood by the jury as referring to the time at which the contract of sale was made in January, 18'Jl, and not to the time when the goods were delivered to the purchaser the latter part of the succeeding month, and, indeed, we are not prepared to say but that that would have been the true interpretation of the language employed when referred to the evidence. There was no evidence whatever that at the time of the contract McKinstry made any concealment of his financial condition, or even that he was then insolvent or in failing circumstances. The charge, therefore, while correctly asserting in substance that a fraudulent concealment is the equivalent of a false representation in this connection, was abstract, as the jury might have understood it and perhaps properly understood it; and so understood its tendency was to mislead them. For these, if not for other, reasons the court committed no error in refusing to give it.
The judgment of the Circuit Court must be affirmed.