Williams v. Wood

14 Wend. 126 | N.Y. Sup. Ct. | 1835

By the Court,

Savage, Ch. J.

Several questions were raised upon the trial. An original judgment record, from the clerk’s office Utica, was introduced without being proved to be a record by the oath of the clerk or his deputy, which was irregular, but the irregularity is cured by the production upon the argument of an exemplification of the record.

It was objected that it should be shown that the judgment obtained upon the notes given for the goods purchased by Cook upon the credit of the recommendation, or for the price of the goods. It was sufficiently shewn that the judgment was for the goods purchased. Whether the notes had been cancelled, was a question which did not properly arise upon this trial. In the original action against Cook, bad it been contested, the plaintiffs would have been compelled to produce and cancel those notes, before they would have been permitted to recover for the goods themselves ; bat between these parties it could not be material.

The letter of the plaintiffs’ attornies was properly admitted, as without it the pertinency of the defendant’s letter could not be so well appreciated.

ed for a glass of beer l The gist of the action is damage sustained by the plaintiffs, arising from the fraudulent act of the defendant. The mere production and proof of the recommendation did not establish the fraud, but by shewing the falsity of the recommendation, the inference of a fraudulent intent almost necessarily arose. Why should the defendant represent that Cook was an industrious, reputable citizen, of good morals and habits, when he must have known that he was an idler about the streets and groceries, intemperate, and occasionally drunk ? Why express an opinion that he would endeavor to perform any engagement of business or credit, when he was a man who had no pecuniary means, followed no business, and could not, as defendant admitted, when the recommendation was given, get trust-The plaintiffs had reason from the recommendation to believe that Cook w^is a man who might safely be trusted in so far as personal integrity was concerned. It is inferrible from the paper itself, that he had little or no property; but if he had possessed the qualities imputed to him, the only risk his creditors would have run would have been misfortunes which might befal him. It was proper therefore to receive evidence of the fact that Cook was insolvent and worthless when the recommendation was given, and that the defendant knew it.

The only objection which struck me as having any force, was the rejection of the evidence offered to show the true object of signing the recommendation to be to enable Cook to buy a small piece of ground at Oswego, to cultivate as a garden; but admitting this to have been the object," the proof itself would have shown that it was intended to enable Cook to obtain credit, when the defendant said he could not be trusted (at Auburn-, where he was known,) for a glass of beer. This therefore would not help the defendant. It is not necessary to show that the object was to defraud the plaintiffs in particular. If the object was to defraud any one, the action is well sustained by whoever happens to be defrauded by the false recommendation. Had the defendant offered to show that Cook was such a person as he had represented him to be, that would have been proper evidence. So he might have shown that he really believed whát he had stated of Cook, and had himself been imposed upon as to the character and habits of Cook, and his capacity to fulfil his contracts. He would then have come within the case of Haycraft v. Creasy, 2 East, 92, where the defendant had been the dupe of the artifices of the person recommended. No such evidence was offered in this case, and probably could not be offered, as may be inferred from the absence of such proof, as well as from the evidence produced by the plaintiffs. In the case of Allen v. Addington, 7 Wendell, 22, after an examination of some of the cases which had been decided, several propositions were deduced as resulting from the decisions, and which have received the sanction of the court for the correction of errors. It is there said, that “ It is not essential that the person making the false affirmation is to be benefitted by the fraud. Nor is it necessary that the intention should exist to defraud the plaintiff in particular. If a person intending to defraud somebody gives a general recommendation of credit, to an insolvent person, any one who sustains damage by reason of such recommendation is entitled to an action for such damage grounded upon the fraud.” This principle sustains the present action, and justifies the judge in rejecting the evidence offered. It is no apology that the defendant intended to defraud some person at Oswego and did not intend to defraud any one at Utica. The intention to defraud is not disproved.

If I am right thus far, then the charge of the judge was strictly correct. He stated in effect that the plaintiffs, must show that they had sustained damage by reason of the recommendation ; that the recommendation was false, and that the defendant knew it was so when he gave it. Whether he was right also in saying that the insolvency and death of Cook were sufficient evidence for the jury, it is not necessary to decide, for he added that they must be satisfied from all the testimony that the plaintiff’s debt had not been paid.

New trial denied.