Lord v. Colley

6 N.H. 99 | Superior Court of New Hampshire | 1833

Richardson, C. J.

delivered the opinion of the court.

The question, in this case, is, whether the jury were misdirected in a matter of law.

It is well settled that an action of this kind cannot be sustained, unless the recommendation be both false and fraudulent. Recommendations are generally understood to be nothing more than the opinion of those who give them, resting upon common reputation, and the apparent circumstances of the individual recommended, and not upon any minute examination of his affairs. And it is well known that men, who are apparently in good credit, and in easy circumstances, turn out to be, in reality, insolvent. It is, therefore, very obvious that a recommendation ought not to be presumed to be fraudulent merely because it happens not to be true. The law, <⅛ this subject, is explained in the cases cited by the counsel of the defendants, and in many other cases. 8 Taunton, 637, Ames v. Melward; 5 B. & P. 241, Hamar v. Alexander; 12 East, 631, Vernon v. Keys; 6 Taunton, 522, Peutris v. Austen; 2 Starkie’s Ev. 467; 2 Starkie’s N. P. C. 561, Fletcher v. Bowsker; 6 Cowen, 346, Gallager v. Brunel; 13 Johns. 244, Barney v. Dewey; Peake’s N. P. C. 226, Scott v. Lara; 7 Bingham, 105; 6 ditto, 396, Foster v. Charles.

In this case the jury were told, in substance, that if the recommendation was false it must be presumed to be fraudulent. But it is certain that a false representation is by no means necessarily a fraud in law.

If, then, the writing which was signed by the defendants in this case, is to be considered as nothing more than a common recommendation, it is clear that the question of fraud was a question of fact to be settled by a jury, and the direction given was wrong.

We have attentively considered the writing which was given by these defendants. It is not in the common form of a letter of recommendation. With respect to the competency of Hobbs to pay #100, it is a certificate. As to his credit it is a recommendation. Now a certificate is, strictly speaking, a certain assurance of that which it states. But these defendants are probably common men, who are not likely to know very accurately the precise force of the word certify. It is probable that in certifying that Hobbs was competent to pay #100, they intended nothing more than to express an opinion that he was competent. And it is probable that the certificate would, in general, be understood to express nothing more than this.

We are, on the whole, of opinion, that the jury were misdirected, and there must be a new trial, in order that it may be submitted to the jury to say whether the writing, which was signed by the defendant, was fraudulent as well as false.

Jfew trial granted,