225 Mass. 435 | Mass. | 1917
The plaintiff, a dealer in millinery goods, made to the defendant, a milliner, the nineteen sales referred to in the declaration, beginning. August 24, 1914, ending October 6, 1914, and aggregating $207.82.
There was evidence from which the jury could find the following facts: When the defendant moved to Boylston Street about September, 1913, she was $7,000 in debt, and her business was greatly impaired during the year following; from August 1, 1914, to October 14, 1914, her indebtedness steadily increased and her stock diminished; about the first of September she had an attorney send a general form letter to her creditors offering to pay them with notes, but no cash; the middle of September her books showed an indebtedness of about $15,000, and she made an offer to her creditors of twenty-five per cent in her unsecured notes; while this effort to compromise with her creditors was in progress she formed a corporation, known as Clifford, Inc., with three dummy incorporators, intending thereby to cater to her customers; a petition in
A jury would be warranted in inferring from the conduct of the defendant as disclosed by the evidence, that she bought these goods with a preconceived, definite, conscious intent not to pay for them. Under our law this would constitute a fraud upon the plaintiff, would render the sales voidable at his election, and entitle him to recover the goods in an action of replevin if they remained hers. Watson v. Silsby, 166 Mass. 57. Phinney v. Friedman, 224 Mass. 531.
The plaintiff, however, has not attempted to avoid the sales. This action is in tort for deceit. The declaration is based on alleged false and fraudulent representations by the defendant, made at the time of the sales of these goods, that “she . . . then and there did intend to pay the plaintiff therefor within the term of said credit.” It was incumbent on the plaintiff to establish this by words or acts of the defendant falsely representing to him a fact which induced him to make the sale. A mere promise to pay was not enough. A representation of a present intention to pay must be shown. See Commonwealth v. Althause, 207 Mass. 32.
The evidence on this issue was meagre. But in addition to the representations created or conveyed by her acts, fraudulently producing a false impression upon the mind of the plaintiff, there were statements made by the defendant when some of the sales were made which a jury properly could say impliedly represented that she had a present intention to pay for the goods: such as “I am, thoroughly reliable. You will get a check for it the first of the month; . . . Mr. Donovan you will get your money very shortly. If I owe you $200, no matter what the amount is, you will be paid.”
The jury also could find that these representations were false. Plainly the evidence referred to would warrant a finding that the defendant could have had no reasonable expectation of ever pay
By the terms of the report if there was any evidence upon which the plaintiff was entitled to go to the jury, judgment is to be entered in his favor for a stipulated sum. In our opinion there was evidence entitling him to go to the jury on some of the counts in his declaration. Accordingly the entry must be
Judgment for the plaintiff in the sum of $207.82.
