Weeks v. Burton, 7 Vt. 67

Weeks v. Burton

7 Vt. 67 | Vt. | 1835

The opinion of the court was delivered by

Williams, Ch. J.

The principles of law upon which this action is sustained were declared in the case of Pasley vs. Freeman, 3 T. R. 51,-and were recognized by this court, at the present term, in the case of Ewing vs. Calhoun. To maintain it, the plaintiff must have proved the representations made by the defendant in relation to the note against Baker, the falsity of those representations, the knowledge of the defendant in relation to the falsity, and that the plaintiff sold the horse and took the note on the faith of those representations, and was thereby deceived. The evidence was, that plaintiff sold the defendant the horse, and received the note in payment; that defendant refused to endorse the note, but at the time declared that the note was good; and that on the Thursday preceding, the defendant had been at the town clerk’s office in Georgia, and that one of Baker’s farms was unencumbered. To prove the falsity of these representations, the evidence was, that the defendant then had attached, on a note which he held against Baker, eighteen head of cattle, whicji were at that time in the custody of an officer; that the sheriff had informed a Mrs. Ball, in the presence of the defendant, that he could not find personal property of Baker’s sufficient to secure a fifty dollar execution, and that his creditors had entirely stripped him of property. The evidence was also, that in fact the creditors of Baker had that morning taken all his'property, both real and personal.

The inquiry is, whether this evidence tended to prove the plaintiff’s declaration ; and of this there can be no possible doubt. By a representation that a note is good, no other meaning is conveyed, than that the maker is responsible. It would be a far-fetched sup*71position, to say that the parties understood from this expression no more than that the note was genuine. It is in no particular similar to the declaration made, as reported, in the case of Barrett & Co. vs. Hall & Co., 1 Aik. 269, where the word good was made use of as applicable to an article of merchandize. As applied to a note, it has a different meaning, and is clearly equivalent to saying that the signers are responsible. It is also to be considered, that the representation was made on a request, by the plaintiff to the defendant, to endorse, and thereby guarantee the payment of the note when it became due, and was also connected with a representation of the property of Baker, and his ability to pay the same. Was this representation false, and known so to be to the defendant ? The testimony was abundant to 'this point. .His own attachment, the representation made by Eggleston, the sheriff, in his presence, and the actual condition of Baker at the time, all prove these facts. And his refusal to endorse, and concealing the information which he had thus obtained, are evidence of á design to impose on the plaintiff, and induce him to take the note in payment for the horse. His giving the information of the situation of Baker’s property, as it was on. the Thursday previous, without at the same time communicating the fact of his failure and insolvency, was well calculated to deceive and defraud the plaintiff. Neither can we see any failure of evidence to convince the mind that .the plaintiff relied on this representation, or that if the whole truth had been communicated to him, he would have parted with the horse and received the note in payment without endorsement. Baker was apparently good but a short time previous. There is no evidence that the plaintiff had heard of his failure; nor can it be believed for a moment, that if defendant had communicated all the facts in his knowledge, without endeavoring to create the impression that Baker still remained a responsible man, the plaintiff would have accepted the note. In short, the conduct of the defendant on that occasion, if the testimony as detailed in the bill of exceptions was true, was too evidently designed to create a false belief in the plaintiff, to enable the defendant to profit thereby.

On the whole, the declaration appears to have been proved in every particular, and the charge of the court was correct.