37 Minn. 137 | Minn. | 1887
This was an action to recover possession of a lot of buggies, alleged to have been obtained from plaintiff by defendant, in exchange for a note against S. E. Hart & Co., by false and fraudulent representations as to the solvency of the makers. It appears that in the latter part of June, 1886, defendant employed one Max Zimmerman to sell or dispose of for him four notes executed by S. E. Hart
Appellant's chief and only sufficient assignment of error is that the verdict is contrary to law and against the evidence in certain specified particulars.
1. The evidence is conclusive and uncontradicted that S. E. Hart & Co. were badly insolvent on July 12th; that they met no particular loss between July 1st and July 12th; and that they were hard-up,, and allowed paper to go to protest, in June. The evidence of their insolvency on the first of July was therefore ample.
2. Zimmerman, defendant’s agent, himself admitted that before he made the trade with plaintiff he was confidentially advised by a eer-
3. The defendant contends that the evidence shows that plaintiff did not rely upon the representations of Zimmerman, but acted upon the results of their own investigations as.to the solvency of S. E.Hart & Co. It is quite probable, from the evidence, that plaintiff relied in part upon their own investigations, and that they might not. have made the trade had the result of such investigations not corroborated Zimmerman’s statements. But it does not follow that they relied solely upon their own inquiries. Their agent, who transacted the business, testifies positively that he did rely on Zimmerman’s, statements, believing them to be true. It is not necessary that the false representations should have been the sole motive; it is enough, if they had a material influence upon plaintiff, although combined with other motives. In other words, it is not necessary that Zimmerman’s representations were the sole operating cause inducing plaintiff to take the note; it is enough if they constituted one of the substantial inducements to such action. Bigelow, Fraud, 88; James v. Hodsden, 47 Vt. 127; Matthews v. Bliss, 22 Pick. 48; Safford v. Grout, 120 Mass. 20; Bruce v. Burr, 67 N. Y. 237.
4. Appellant contends that, even if S. E. Hart & Co. were insolvent, yet plaintiffs have made out no cause of action, because they have not proved that the indorsers, Zimmerman and Rogers, are not good, and therefore it does not appear that they have sustained any damage by the fraud. To state this proposition is to refute it. Plaintiff
Appellant’s assignment of error in the admission of evidence is too ■general and indefinite to be of any avail. It should have specifically pointed out the evidence which is claimed to have been erroneously .admitted.
One point, however, which has been argued by counsel on both :sides, may be of sufficient importance to be briefly referred to. The plaintiff was allowed to introduce evidence that on the same day or the next day after the trade with plaintiff was made, Zimmerman, with ■the knowledge and assent of defendant, gave two of this same lot of notes to his wife, Annie Zimmerman, to be traded off; that defendant told her not to mention his name in connection with the matter, but to say that she got them in trade for real estate; that, it being suggested that one of the notes could be traded to one Stevens for furniture, he told her to have the furniture removed at once, because .Stevens would find out that Hart & Co. were going to fail; to tell him •that she was going to keep house in the country, and to have the furniture taken 'to the Northern Pacific depot as if for shipment, and ■that he would then send around a dray and take it to his place of business; and that, during these negotiations with Stevens, (on July 7th,) he told her that, if she did not get the goods from him that ■day, “the trade would be no good,” because Stevens would find out that the note was “no good.” If this had been a separate and distinct fraud, it would have been clearly inadmissible; but it is evident that the acts of defendant and Zimmerman in trading one of these notes to plaintiff, and the attempted trade of the other to Stevens, were parts of one fraudulent scheme, committed in pursuance of ■a. common purpose. The acts were so connected as to make it apparent that the defendant had a common purpose in both, viz., to get add of these notes against S. E. Hart & Co. before their insolvency
Order affirmed.