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Edwards v. Owen.

Conde in un

Motions for new trial, and in arrest of judgment, were made in Bank,

m Dec. Term, and overruled; and, finally, judgment was entered upon the

1846. verdict. . . . . . . .

. During the progress of the trial, five bills of exceptions were taken and made part of the record.

Several errors are 'assigned, which will be noticed in the opinion of the Court.

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First: The declaration was bad, and the Court below erred in overruling the demurrer. It is subject to the following objections:

1. It contains no direct averment of the solvency of the defendant below at the time of the composition. The averment may relate to the time of the composition, or to the subsequent period when the note fell due.

2. It is repugnant and contradictory, in its averment, as to the time when the composition was made.

3. It is not alledged that plaintiff was ignorant of the quality and value of the articles taken by him in satisfaction of his note, or that any fraud or deceit was practiced on him in such sale.

4. If it be urged that the ground of action is not fraud in the sale, but the delusion produced on the mind of the plaintiff by the misrepresentations of the defendant, as to his circumstances, by which the plaintiff was induced to incur a certain and known loss to avoid a greater, then no such gravamen is set out in the declaration, or fairly inferable from the facts there stated.

5. If such cause of action had been fully set forth in the declaration, still the action for deceit could not be sustained, the sale itself being uninfected by fraud or concealment. Butler v. Kent, 19 Johns. Rep. 225; Patton v. Gurney, 17 Mass. Rep. 182; Vicars v. Wilcocks, 8 East Rep. 3; i Chit. Pl. 387; Bagley v. Morrell, Cro. Jas. 632; Vernon v. Keys, 12 .

Edwards o. Owen.

IN Bank. East Rep. 632; Dawes v. King, 1 Stark. Rep. 61; Davis v. Dec. Term, 1846. 1. Meeker, 5 Johns. Rep. 354; 2 Steph. N. P. 1283.

If it is urged that, according to our view of the law, fraud and misrepresentation would go unpunished, and the deceived unredressed--we answer, that if this transaction was so fraudulent as to vitiate it, the appropriate remedy is by assumpsit on the note, treating the composition as a nullity. Forsythe on Comp. with Cr. 27, in 1 Lib. of Law and Eq.; Belden v. Davies, 2 Hall's Rep. 418; Stafford, v. Bacon, i Hill's Rep. 532; Cooling v. Noyes, 6 Term Rep. 262; 1 Com. Dig. 362; Lamb v. Stone, 11 Pick, Rep. 527. ' .,

Second: But the Court erred in admitting evidence of the general reputation of defendant's insolvency, in the spring of 1841. The declaration charges representations made by the defendant to the plaintiff. This averment is not sustained by proof of representations made to others, still less by proof of compositions, made with other creditors, without the knowledge of plaintiff. Peake's N. P. 226; Allen v. Addington, 7 Wend. Rep. 10; Snell v. Moses, 1 Johns. Rep. 96; Perry v. Aaron, Ibid. 129; Beach v. Catlin, 4 Day's Rep. 284; Smith v. Blake, 1 Conn. Rep. 262.

Third: The Court should have charged the jury as requested, that no 'representations were admissible under the declaration, unless made by the defendant to the plaintiff, or to the agent of the plaintiff, and communicated by him to his principal. Allen v. Addington, 11 Wend. Rep. 375, and cases above cited.

P. P. Lowe and W. J. McKinney, for Defendant.

BIRCHARD, J. The first assignment of error goes to the sufficiency of the declaration which it is said cannot be maintained, mainly, because, if the note in question was given up by reason of the fraudulent inducement, without full payment, there is a plain remedy, by action of assumpsit upon the note, and that, in such a case, no special action upon the case can be

Edwards v. Owen.

Dec. Term


resorted to. Of this opinion are two of the members of this In Bank. Court, while the other members hold that, notwithstanding the action of assumpsit might be maintained, the special action – upon the case will also lie; that the defrauded party may count directly upon the fraud and avoid any notice of offset; that he may have his action for the deceit in this case, without returning the property, as well as he might have an action for the note after an offer to return that for which he gave it up; and this upon general principles. The Court being equally divided in opinion, the objection to the declaration fails, and the decisions of the Court of Common Pleas, in overruling the demurrer and disallowing the motion in arrest of judgment, are sustained.

By the first bill of exceptions, it appears an objection was taken to the admission of the testimony of D. A. Wareham, and an error is assigned upon this exception. The witness stated, that he was at Edwards' store, on the 17th of June, endeavoring to collect a debt of $600, in goods, when Edwards told him he was as poor as a church mouse; that Owen was there on the same day making his arrangement to receive, out of the store, goods on the note set forth in the declaration ; that he did not communicate the conversation to him, that on the same day, and before he received his goods of Edwards, the clerk of Edwards then being in the store and in the hearing of Edwards, told him he had better take goods, &c., for it was the only chance — that if he waited till after court he would not give fifty cents for the claim, &c.

The next bill of exceptions on which errors are assigned, presents no principle distinguishable from the above, and both may be considered together. It is proper to remark, that they do not set forth what particular ground of objection was taken to the evidence, and we are, therefore, under the necessity of considering whether, in any aspect of the case, such evidence was competent for any purpose. Several things were necessary to sustain the plaintiff's right of action, and whatever tended to prove any one of those several matters, was competent for

Edwards v. Owen.

In Bank. that purpose. It is clear, that what was said to others, whethDec. Term, * 1846.

"er communicated to Owen or not, was incompetent to prove

the fraudulent misrepresentations alledged to have been made directly to him. But upon the hypothesis that those charges of the declaration were specifically proved by other evidence, might not proof of this description tend to throw some light upon the question, whether they were made in good faith or with a fraudulent design, and with the intention that they should deceive? It was as important for Owen to satisfy the jury of the existence of a fraudulent purpose in making the false representations, as of their falsity, or that he was thereby

defrauded. What passes in men's minds can, in general, only : be gathered from their acts, and the attending circumstances,

from what they were doing, causing and requiring to be done. As to what was said by the clerk, we know not that it was objected to. But is it to be supposed that a clerk in a store, his employer at home and daily supervising and directing him, will represent his principal as insolvent and in a few days likely to be unable to pay fifty cents on a $600 note, without instruction to do so and that his principal will retain him after such representation, make similar ones in his presence, profit by them at the expense of his creditor, and all with honest and fair intentions ? The necessary and legal inference from such conduct is, that the servant, thus acting in concert with the principal, but obeys the behests of the master, and that the latter intends and sanctions the commission of the imposition which so profits him.

Again - in this case, that part of the evidence which went to show that goods were received out of the store, was competent, for it was incumbent upon Owen to satisfy the jury that he received on that day the goods, as averred in the pleadings. We are not prepared to say this evidence was incorrectly admitted. . The third bill of exceptions was taken to the admission of the testimony of R, C. Schenek and another, and the fourth to the admission of sundry other witnesses, and errors are assigned

Edwards v. Owen.

Dec. Term,


upon these. The specific ground of objection is not stated in In Bank.
either of these bills of exception, and, as has been said in re-
marking upon their predecessors, if the proof objected to ten-
ded to support the issue in any respect, it was not error to ad-
mit it. Mr. Schenck testified to sundry conversations of Ed-
wards with him, as the agent of sundry of his creditors — that
he said they must take what he offered them or they would get
nothing. The witness narrates the manner of his compromi-
sing, the value of his property, and the price at which he in-
duced creditors to take it. The other witness proved, that
about that time Edwards was generally representing himself
insolvent, and that he became generally so reputed about Day-
ton, and that the report, contrary to the truth, was believed to
be well founded. Now, all this proof, connected with the fact
that he made, compromises of his debts greatly below their
amount, admitting that he was then able to pay the full amount
of each claim, would seem to furnish some evidence that he
knew the falsity of the representations made by him to Owen,
and which Owen says deceived him. Admitting that there
was proof that those representations were made, and falsely
made, one would hardly need more to bring his mind to the
conclusion that the design was fraudulent. If it tended to
support that part of the issue, it was proper to suffer it to go to
the jury, whether, by itself and unaided, it was sufficient or not.

Upon the fifth bill of exceptions, two errors are assigned
First: In refusing to charge the jury, as requested.'
Second: In the instructions given.

The Court were asked to instruct the jury that, to entitle Owen to recover, they must be satisfied that Edwards represented to him that he was insolvent, and unable to pay him and his other creditors, with intent to deceive and defraud him ; that the representations were false and fraudulent, that they were relied on by him, and were the means by which he had been deceived and had sustained the damage complained of; and that representations made to others, and by them communicated to Owen, would not sustain the action.

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