| Vt. | Nov 15, 1862
The jury have found that the defendant attempted to cheat the plaintiff in the weight of his butter ; that he reported the weight to the plaintiff’s father, and marked the tubs at from twenty to thirty pounds less than the true weight. The plaintiff was not present when the butter was weighed, and therefore had to rely on the paper the defendant gave his father containing the figures of the weight.
I. If the plaintiff settled with the defendant for the butter upon the basis of the weight as reported by the defendant, and afterwards discovered the fraud, he would, it is admitted, be entitled to recover for the fraud.
II. But the defendant claims that the case, standing on the-plaintiff’s testimony, shows that the plaintiff has suffered no damage although the defendant may have attempted a fraud, yet in fftet^he -has not accomplished his attempt; but on the contrary has given «his note to the plaintiff on settlement for more than the value of the butter at its true weight and contract price. .
ITo sustain this action there must be both fraud and damage J A naked lie'that causes no injury to another is not actionable. The lie must be relied upon, and must occasion damage.
The defendant claims, first, that the lie was not relied upon ; and secondly, that it did no damage, according to the plaintiff’s own'testimony ; and that this viewof the case was not presented to the jury. To determine this point we must consider the plaintiff’s testimony, and the charge of the court in regard to it.
The plaintiff, hearing that the defendant was about to go to California, and not to return to pay for the butter, went in search of him, and after going to New York and Boston, found the defendant at Lebanon, New Hampshire.
He called on the defendant for payment of the balance due for the butter. The defendant said he had no money. The plaintiff
It will be noticed that thus far nothing has been asked for by the plaintiff, or spoken of by either, but “ payment of the balance due for the butter ;V and that what that balance was, was what neither could exactly tell, — the plaintiff supposing it “ about sixty dollars,” and the defendant “ fifty-five .or sixty dollars.” The plaintiff then proceeds : “ I said I had been at considerable trouble hunting after him, and would call it sixty dollars. He assented and gave me his note for sixty dollars.” It is admitted that this note was large enough to cover the full amount of the butter at the contract price.
The plaintiff further said that he had lost the paper that his father gave him, and did not know what the figuraswere.
Now, upon this evidence it is clear that the dMeaSftim-c might^ justly have urged upon the jury, first, that tine note was given solely for the balance due for the butter ; that the remark as to •bis trouble in hunting after the defendant was not intended by him, or understood by the. defendant, as making those expenses.' or that trouble a part of t^ consideration of the note, but only as entitling him equitably or morally to have the defendant’s doubt whether the balance was fifty-five or sixty dollars, solved in the plaintiff’s favor. If given solely for the balance due for the butter, and it covered the whole balance according to true weight and contract price, we are at a loss to see what damage occasioned by the original false statement of the defendant has ■accrued to the plaintiff. The plaintiff does not appear to have incurred any expense or trouble on account of the falsehood, or to have lost any thing by it. He did not go in search of the deféndant on account of it. The attempt to cheat was not consummated by payment or settlement at the lower weight.
Had he known all the facts as to the attempt to cheat, he could not have asked for more than the sixty dollars as the balance due
Secondly, the defendant might also have justly insisted that to sustain this action the plaintiff must show that he relied ujjon the false statement in making the settlement.. *
The testimony of the plaintiff might fairly be claimed by the defendant as tending to show, that the plaintiff could not recollect what the statement originally made by the defendant as to the, weight was ; that tife plaintiff had lost the paper which the defendant gave to his father, and had forgotten its contents; that the defendant could not tell what the weight was, and did not renew or insist on the original falsehood; and that both parties acted on their own knowledge and judgment as to the weight, uninfluenced by the false statement of the weight as originally made. »
If the plaintiff did not recollect the false statement, — did not know and could not tell what the balance due for the butter was according to the original falsehood, nor what the figures were which indicated the false weight, but claimed a nalance sufficient to cover the whole and true weight, and received it on settlement, we are at a loss to see how he can claim to have been defrauded.
The court in the charge did not present the case to the jury in these two aspects, but seemed to hold that the original falsehood necessarily included damage, and gave a right of action for fraud in weighing, and that, unless such right to sue was discharged in the settlement, it remained in full vigor, and that the plaintiff’s testimony did not show it settled. For the reasons above given we think the charge erroneous, and that the judgment must be reversed.
III. The evidence to show that the defendant on the justice trial by his counsel claimed to defend the suit upon grounds wholly inconsistent with his present testimony, was admissible.
IV. The inquiries of the defendant on cross-examination took rather a wide range ; but we think we can perceive that such inquiries might be proper, and even necessary, to show fraud, and to invalidate pretences made by the defendant.