42 Conn. 324 | Conn. | 1875
At the request of the plaintiff the court below charged the jury as follows :—“If an insolvent, who is carrying on business with knowledge that he can no longer continue it, and that his property is liable at any moment to be taken by his creditors, and that in that event he will not be able to pay for goods purchased on new credit, purchases goods upon credit without disclosing the circumstances to the vendor, his willful concealment thereof amounts to fraud, and his assignment passes no title to such goods to his assignee, and the vendor is entitled to his goods.”
We think this charge is incorrect. In the first place, it is not an element in it that the vendee knew that he was
But it is said that the court in a subsequent part of the charge told the jury, that if the purchase was made with the intention and expectation of payment, the sale was legal, although the purchaser knew that he was insolvent; and so it is claimed that this part of the charge prevented the harm that might have been done by the first part. ■ We do not so regard it. Here are two distinct propositions of law stated to the jury, designed to meet two different phases of the case presented by the evidence. The first proposition, stripped of all verbiage, amounts to this; that the defendant was guilty of fraud if he purchased the goods knowing his inability to pay for them, unless he disclosed the fact of his inability to the vendor at the time. There is nothing stated
Furthermore, it is not true that a man is necessarily guilty of fraud who purchases goods knowing his pecuniary inability to pay for them and does not disclose the fact to the seller at the time. The expression in the charge, “ will not be able to pay,” was used in the sense of pecuniary inability to pay. This is clearly shown by the context in relation to the creditors taking all his property; and also by what is said in the closing part of the charge, where the court instructed the jury, that a man in purchasing goods holds himself out by the act of purchase as able to pay for them, and is guilty of a false representation implied by his act unless he is able to do so.
To constitute fraud in such a case, there must be such facts and circumstances attending the transaction, not only in relation to the purchaser’s want of property and credit, present and prospective, if such is the case, but facts sufficient to prove to the satisfaction of the jury that the purchase was made with the intention of not paying for the goods; and where this is the case a party will be guilty of fraud whether he discloses his pecuniary condition or not. Want of property can only be evidence tending to show the state of mind in which the purchase was made. How many purchases are made by honest men, where the purchaser relies, for his ability to pay, upon his credit alone, and is not disappointed ?
A new trial is advised.