Munro v. Bradstreet Co.

Ingraham, P. J. (dissenting):

I dissent from the reversal of this judgment.

The plaintiff, residing in Chicago, Ill., became a subscriber to the defendant’s system. He paid to the defendant $100 a year in consideration of its supplying not to exceed 100 reports concerning the responsibility, etc., of merchants, manufacturers, or bankers, or other mercantile persons transacting business, and the plaintiff was also to have the use of a certain edition of defendant’s printed volumes, and agreed to pay fifty cents on demand for each report in excess of his number. And it was then agreed between the plaintiff and the defendant “that the said Company [the defendant] shall not be liable for any loss or injury' caused by the neglect or other act of said Company or any of its officers, agents or *299employees, in procuring, collecting, and communicating said information. That the said Company does not guarantee the correctness of the aforesaid information, whether printed, written or verbal. * * * That the conditions of this subscription, as set forth above, embody all the agreements and understandings concerning it made or had with said Company, or its agents or employees acting in its behalf, either verbal or written, and that the power to modify, alter, amend, release or cancel this subscription, or any portion or condition thereof, after being signed, rests solely in the President of The Bradstreet Company, and if any change is made it must he duly authorized by him in writing.” This subscription was for a term beginning May 1, 1913, and ending June 30, 1914. The parties, being able to contract, made this contract, and I can see no reason why it should not be enforced. By it the plaintiff agreed that the company should not be liable for any loss or injury caused by the neglect or other act of the said company or any of its officers, agents or employees, in procuring, collecting, and communicating said information. That being the contract, on August 27 or 28, 1913, the plaintiff in Chicago called up- the agent of the Bradstreet Company in Chicago and asked him for a telegraphic report about the firm of Jackson & Sulzer doing business in the city of New York, plaintiff having an offer to sell certain furs to that firm on credit. Defendant’s agent in Chicago said they had no report as to that firm on their files, but he would wire to get a report on Jackson & Sulzer the following day. On the following day defendant’s agent . called plaintiff up, said that they had received a telegraphic report on Jackson & Sulzer, and that their man had called on them. Then plaintiff asked defendant’s agent to read the report, and defendant’s agent read the report over the telephone. Plaintiff then asked the agent to mail him a copy of the report, and plaintiff subsequently received a copy of the telegram dated August 29, 1913, which stated that Jackson & Sulzer stated “in substance as follows: ' Assets, $58,500.00; liabilities, $43,500.00. ’ Statement is corroborated by the trade, they are doing a fair and deemed safe business, are well regarded and deemed worthy of credit, and pay promptly so far as known here.” On that report there was printed a state*300ment that “ the correctness of this report is not guaranteed, but having been obtained by us in good faith — from authorities deemed reliable — it is transmitted to you in strict confidence for your exclusive use and benefit, and in accordance with the terms of your subscription agreement.” Acting upon this information the plaintiff accepted the offer of Jackson & Sulzer and sold the goods, but before the notes received by them in payment became due, Jackson & Sulzer became bankrupt. The court below dismissed the complaint, and I think properly. Plaintiff knew perfectly well that it was asking information from the Chicago agency of the defendant which had no information on file and would, therefore, involve a telegraphic communication with New York, and a report also by telegram. Before making the sale plaintiff had received a copy of the telegram from New York. Plaintiff knew that the defendant’s agent in Chicago had no knowledge except what was obtained in this telegram, and as before stated the telegram itself was communicated to the plaintiff. I do not find that here there was a misrepresentation. It appeared by the evidence that defendant had received from Jackson & Sulzer information of their condition as specified in this telegram as of January 20, 1913, and that Jackson & Sulzer’s condition had been confirmed by investigations made in March. The only mistake that was made was in not stating in the telegram that this was a statement of March instead of one at the time the communication was furnished. There was no false statement and no misrepresentation. Defendant’s agent in Chicago had said that defendant’s man had called on Jackson & Sulzer, and that was true, although the call was in the previous March and not in August. It seems to me that the inaccuracy of this report, if it can be so designated, was caused by the telegraphic communication to Chicago from New York, by which the plaintiff assumed that this was an independent investigation made at the time of the report, and not one based upon the documents in the defendant’s office. I think that at most this was the neglect or other act of said company or its officers, agents or employees in procuring, collecting, and communicating said information. And for that the plaintiff had expressly agreed that the *301defendant should not be liable. If the plaintiff had desired further information it could have asked for the date of the report made about Jackson Sc Sulzer. There was certainly nothing in the statement issued by the company, and upon which the plaintiff acted, that would justify a finding of fraud. In the prevailing opinion stress is laid upon an observation of Mr. Justice Follett in writing the opinion of the court in Xiques v. Bradstreet Co. (70 Hun, 334; affd. on opinion below, 141 N. Y. 605). That action was against this defendant for liability for making a false report as to the responsibility of a merchant with whom the plaintiff had dealings, and it appeared in that case that the report was entirely misleading. In discussing the case Mr. Justice Follett, writing the opinion at General Term, said: ‘' Under this stipulation the defendant cannot be held liable for the consequences of misinformation, unless it is so grossly negligent in acquiring or communicating it that its conduct in effect amounts to a fraud.” And then on examination of the case he held that the defendant was not liable. It is a little difficult to understand what the learned justice had in mind when speaking of such negligence as “in effect amounts to a fraud.” But I think at least to bring a communication made by the defendant to one of its subscribers within this definition there must be some of the elements of fraud, such as intentional communication of false information — of evidence of which there was none in this case — from which it can be inferred that the defendant through one of its responsible officers intended to deceive; not a mere insufficient report which, although it conveyed false information, was based upon the mistake of the defendant’s agents with no suspicion of any intent to deceive. Here, as before stated, plaintiff knew that the defendant would have to obtain the information by telegram from New York. The telegram itself was communicated to the plaintiff, and the plaintiff was expressly told that the defendant had no information at its Chicago office. There certainly was no evidence that could possibly justify a finding of any intention to deceive or anything more than neglect of either the New York agent or the Chicago agent, and for such neglect the plaintiff expressly agreed that the defend*302ant should not be liable. It also was expressly guaranteed that this agreement should not be modified except by the president of the defendant company, and it is not claimed that any communication was made to or received from him. I think, therefore, the plaintiff was misled by a false impression which he obtained from this telegram, which at most was the neglect of the agents of the defendant, either in New York or Chicago, for which the defendant was not liable.

I think, therefore, that the judgment should be affirmed.

Clarke, J., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.