Van Kleek v. Leroy

Grover, J. (dissenting).

The question for the determination of the jury in this case was, whether Leroy purchased the goods in question with the fraudulent intent of not paying therefor, and thus of defrauding the plaintiff of their value. The plaintiff, among other things, gave evidence tending to show that Leroy, at about the time of the purchase in question, purchased goods of one Ken-worthy, and, as an inducement to Kenworthy to make the-sale, made false and fraudulent statements as to his pecuniary circumstances and ability to pay for the goods so purchased, which statements were communicated by, Kenworthy to the plaintiff before the sale to him.

The judge charged the jury, that if the goods were purchased by Leroy of the plaintiff, upon false and fraudulent statements to him by Leroy, he knowing them to be *437false, and that he procured the goods upon such false representations, no title passed.

The judge further charged, that if the gooods were sold by the plaintiff to Leroy, upon the strength of the representations made by Leroy to Kenworthy, or the plaintiff was influenced to make the sale by such representations to Kenworthy, the sale is not for that reason fraudulent, unless the jury further believe that such representations to Kenworthy were made by Leroy to be communicated to'the plaintiff, and with the intent to influence the plaintiff to give him (Leroy) credit.

The plaintiff’s counsel excepted to this latter portion of the charge. Had the action- been to recover damages of Leroy for inducing the plaintiff to sell him goods upon credit, by false and fraudulent statements, this portion of the charge would doubtless have been correct. In such a case, the statement must be made to the plaintiff', either by the defendant himself, or by his authority. But this was an entirely different case. The question in this case was whether the defendants made the purchase in question with the fraudulent intention of cheating the plaintiff out of his goods, by not paying therefor.

In this class of cases, other purchases made fraudulently so near the time of the one in question that the purchaser may be presumed to have acted upon the same design, may be given in evidence to 'show the intention with which the one in question was made, or, at least, as reflecting some light as to such intention (Hall v. Naylor, 18 N. Y., 588, and cases cited). For this purpose it is immaterial whether the statements made upon the other purchases were communicated to the" vendor previous to the sale or not. True, if made with the design of their being communicated, it might add somewhat to the force of the evidence ; but even this might depend upon other circumstances. In the present case, from that portion of the charge not excepted to, taken in connection with that excepted to, the idea conveyed to the jury was, that the fraudulent statements made to Kenworthy, upon the purchase from him, were not material, unless communicated *438to the plaintiff, by the authority of Leroy, previous to the purchase from him. This was error.

All the judges, except Grover J., were in favor of affirmance.

Judgment affirmed.