Humphrey v. Smith

39 N.Y.S. 1055 | N.Y. App. Div. | 1896

Follett, J.:

This action, replevin, was begun in March, 1895, to recover goods purchased by the defendant’s assignor by alleged fraudulent representations. The plaintiffs are partners under the firm name of" Humphrey Brothers & Tracy, engaged in the business of manufacturing and wholesaling boots, shoes and rubbers at Towanda, Pa.. For several years before March 11,1895, Edward Lines was a retail. dealer of boots, shoes and rubbers at Canandaigua, FT. Y.

It is alleged in the complaint that about October 30, 1894, said Lines represented to R. Gr. Dun & Co., a mercantile agency, through. Arthur E. Seales, their agent, that his stock of goods would inventory from $4,000 to $5,000 ; that he had in accounts about $3,000;-that he owned a dwelling worth $4,000, which was incumbered in the sum of $1,800 ; that a few hundred dollars would cover all of his indebtedness, including the mortgage on the dwelling, and that, he was worth more than $5,000, which statement R. Gr. Dun & Co. entered in their books.

It is further alleged that February 15,1895, Edward Lines ordered of the plaintiffs twelve cases of boots and shoes, worth $150.60, for which he agreed to pay $150.60 August 1, 1895, and if he elected to pay this sum within thirty days five per cent was to be deducted from the purchase price.

It is further alleged that upon the receipt of this order the plainfciffs applied to R. G. Dun & Co. for information in respect to the-financial condition of Lines, which agency furnished them with a. copy of the statement made by Lines to Arthur E. Seales, on which the plaintiffs relied, and, February 28, 1895, shipped the goods so ordéred to Lines. It is further alleged that eleven days thereafter Lines made a general assignment for the benefit of his creditors to the defendant, who by virtue thereof received all of the shoes, excepting two pairs.

It is also alleged that Lines purchased the- goods -by means of false and fraudulent representations, with intent to defraud the plaintiffs; that Lines was insolvent in October, 1894, when he made the statement to R. G. Dun & Co., and when he purchased the-goods ; and, in effect, that the goods were purchased by Lines with, the preconceived design not to pay for them. The defendant, admits in his answer that he came into possession of the boots and shoes, as assignee, for the benefit of creditors; that they were-worth $148.80, which is the value of the' goods, as alleged in the complaint.

On the trial the plaintiffs called; Arthur E. .Seales, who testified that he was a traveling reporter for- R. G. Dun & Co., and that on the 28th of October, 1894, he called on Edward Lines at his place of business. The counsel for the plaintiffs then offered to show by the witness that Lines made to him - the statement in respect to his "financial condition, which is set forth in the complaint, which was reduced to writing and forwarded to R. G. Dun & Co., who furnished a copy thereof to the plaintiffs. The defendant objected to this evidence as incompetent and immaterial, as forming no part of the transaction, and that statements made by Lines four months before. the purchase of the goods could not be received to impeach the -defendant’s title. These objections were sustained and the plaintiffs •excepted. This ruling was error, for which a new trial must be granted.

It is well settled in this State that if a dealer makes false and fraudulent representations in respect to his property to a mercantile agency for the purpose of establishing his credit, and those statements become known to and are relied on by persons extending •credit, the representations have the same effect as though made directly by the dealer to the person of 'whom a purchase is made. (Eaton, Cole & Burnham Co. v. Avery, 83 N. Y. 31; Macullar v. McKinley, 99 id. 353; Bliss v. Sickles, 50 N. Y. St. Repr. 139; S. C., 21 N. Y. Supp. 273; affd., 142 N. Y. 647; Naugatuck Cutlery Co. v. Babcock, 22 Hun, 481; Goodwin v. Goldsmith, 17 J. & S. 101; Cantor v. H. B. Claflin & Co., 35 N. Y. St. Repr. 247; S. C., 12 N. Y. Supp. 759; Claflin v. Flack, 36 N. Y. St. Rep. 728; S. C., 13 N. Y. Supp. 269; Kelly v. Gould, 47 N. Y. St. Repr. 5; S. C., 19 N. Y. Supp. 349.)

The learned counsel for the defendant cites many cases to the effect that the declarations of the vendor of goods are not competent to impeach the title of his purchaser in good faith. The rule declared in these cases has no application to the case at bar, the defendant being an assignee for the benefit of creditors and standing in the shoes of his assignor. Ror is there any force in the objection that these representations were made three months and a half prior to the daté of the sale of the goods by the plaintiffs to Lines. In Bliss v. Sickles et al. (supra) the defendants made-statements to a mercantile agency in December, 1888, and in May and August, 1889, which the plaintiff relied on in making sales between January 11 and April 26, 1890, and it was held that these statements were continuing ones on which the plaintiff had the right to rely, and if fraudulent, that the sales could he rescinded and the goods recovered. In Naugatuck Cutlery Co. v. Babcock (supra) the purchaser made false representations to a commercial agency in respect to his financial ability on the 31st of December, 1875, upon which the plaintiff relied in making sales of goods on and after May 31, 1876, and it was held that the statements having been found to be false and fraudulent, the vendor might rescind the sales and recover the goods.

The plaintiffs’ exceptions are sustained, the verdict set aside and their motion for a new trial is granted, with costs to abide the event.

All concurred.

Plaintiffs’ exceptions sustained, verdict set aside and their motion for a new trial granted, with costs to abide the event.