Van Kleeck v. Le Roy

Hogeboom, J.

This case comes here on exceptions ordered to be heard in the first instance at the general term. There was no motion made for a new trial on a case, or on the minutes of the judge, and no order made in relation thereto. The case is not open, therefore, to the argument so often pressed in similar cases, that the verdict is against the weight of evidence. (Code, §§ 264, 265. Fry v. Bennett, 16 How. Pr. R. 385. Morange v. Morris, 20 id 257, 263, 264.)

The only exception made by the plaintiff, in the case, is a single one to the charge of the judge. The judge charged as follows: 1. That the action was brought to test the title to the property replevied. 2. That if the goods were purchased and procured by Le Eoy of the plaintiff upon knowingly false and fraudulent representations, no title passed, and the plaintiff was entitled to recover. • No exception was taken to either of these propositions, and they are plainly unobjectionable. 3. That if the plaintiff made or was influenced to make the sale to Le Eoy upon the strength of the representations made by Le Eoy to Ken worthy, the sale was not for that reason fraudulent, unless the jury further believed that such representations to Kenworthy were made by Le Eoy with the intent to be communicated to the plaintiff, and to influence him to give Le Eoy credit. To this the plaintiff excepted.

. I discover no error in this charge. It -was, in substance, that to justify a vendor in treating a sale of personal property as void, and retaking" the property, upon the ground of false and fraudulent representations, such representations must be made to him or be made for the purpose of being communicated to him. In other words, false statements made to a stranger, without any intent to influence the conduct of the plaintiff, cannot be made the pretext for avoiding a sale made by the plaintiff, himself. The plaintiff has no right to rely upon statements made to other parties. He cannot know all the circumstances under which they were made, nor the object of making them. For while falsehood, in a moral point of view, is never justifiable, nor wholly excusable, its design and object may be wholly misapplied and unintentiontially enlarged, if made to cover a case, or a party, never originally meant to be embraced within its operation. Nor is it a fair and legitimate inference that its subsequent communication to a third person (like the plaintiff) was a natural and legitimate consequence of its original utterance, and should therefore have been foreseen by the defendant, and he consequently be held responsible for it. This is not so. The plaintiff, at all events, had no just reason to- believe that the representations were designed to influence Ms conduct, and therefore had no right to make them the basis of his action. It is, I think, of the essence of- a false and .fraudulent representation that it was designed to influence the conduct of the plaintiff. The fraud must be one perpetrated upon Mm. He has no right to rely upon any other, as the foundation of a business transaction—of a sale of goods. It is, I think, a degree of negligence and rashness which should defeat his action, to pick úp the loose and irresponsible declarations of a party, made for a totally different purpose, and make them, without further inquiry, the basis of his own action. It would, in my opinion, be a dangerous rule, and one which has no just foundation in the law or sound reason.'

It is upon a different principle, and for a totally different purpose, that cotemporaneous representations, made to others, are admissible in evidence. It is simply as aiding to show the quo anima with which the representations to the plaintiff were made. (Cary v. Hotailing, 1 Hill, 316. Hall v. Naylor, 18 N. Y. Rep. 588.) The latter may be to some extent inconclusive or ambiguous upon their face; and it has therefore been considered proper, with a view to throw light upon them, or upon the intent with which they were made— which is in its nature a most material question, and often difficult of solution—to admit evidence of false and suspicious statements made about the same time to other persons. And this with a view only to help to a right understanding of the transaction with the plaintiff, and not to create an orig-. inal and substantive cause of action on his part.

This is the fair reading of the judge’s charge; to wit, that representations made to others do not furnish a substantive cause of action to him, unless designed to be communicated to and to operate upon him. If the plaintiff had ■ desired more explicit instructions, he should have sought for them. If he had asked the judge to charge that cotemporaneous fraudulent representations to others, made with a view to obtáin from them money or property thereby, were admissible evidence for the consideration of the jury on the question of fraudulent intent affecting the statements made to the plaintiff, he would doubtless have so charged. But no such request was made. And I am opposed to wresting the language of a judge from its natural and obvious meaning and, so understood, announcing a correct rule of law, simply because by a forced and unnatural construction of language it is barely possible that his remarks might have been so interpreted as' to convey an erroneous notion of the law. The remedy for such an evil is a totally different but simple and natural one, to wit, to ask for more pointed and explicit instructions. . . .

In reaching this conclusion, I have endeavored carefully to distinguish between a representation which is made the basis of an action, and a representation which is proved simply for the purpose of establishing" a fraudulent intent. The first is a substantive cause of action, when accompanied by extrinsic proof of its false and fraudulent character. And this proof may be in fact by showing other representations false, and fraudulent, and from them drawing a like inference in regard to'the first. The former, as I think, must always be made directly to the vendor of the goods, or for the purpose of being communicated to him. The latter may be made to other persons,, being employed merely as evidence of intent. To justify the rescission of a contract on account of fraudulent representations, the contract must be founded upon them—they must be the basis of the contract. It is sometimes said that a purchase of goods is fraudulent when it is made with intent not to pay for them. :But there must he satisfactory evidence of such intent. And this evidence consists in misrepresentations or suppressions of facts designed and calculated to deceive. I cannot suppose that a purchase of goods could properly be treated as fraudulent, where there has been a full disclosure of all material facts, to the vendor; notwithstanding the purchaser may have cotemporaneously misrepresented or suppressed these facts to other vendors who might have, on account thereof, a valid cause of.action. I think the charge of the judge was founded on this distinction, and was therefore unexceptionable.

I am of opinion that there was no error in the charge of the judge, and that, the motion for a new trial should be denied.

Miller, J.

The judge, upon, the trial of this cause at the circuit, among other things charged; that if the goods were sold by the plaintiff to William F. Le Boy upon the strength of the representations made by him. (Le Roy) to Thomas Kenworthy, or the plaintiff was influenced to. make the sale- by such representations to Kenworthy, the sale was not for that reason fraudulent,- unless the jury further believed that such representations to Kenworthy were made by Le Roy to be communicated to the plaintiff, and with the intent, to influence the plaintiff to give him, Le Roy, credit. Exception was taken by the plaintiff to this portion" of the charge.

The object of the evidence introduced by the plaintiff in regard to the representations made to Kenworthy, was. to show the fraudulent intent of the party in making the representations which induced the sale. If it is not fairly to be presumed that the judge in his charge so stated to the jury, as I think it must be, it is certainly clear that, no, request -was made to the judge in this respect by the plaintiff’s .counsel. Assuming that no request was made, then that portion of the charge to which exception was taken must be considered as an independent proposition of itself, entirely disconnected from any other portion of it, which was made, or which was omitted, to be made, by reason of the failure of the plaintiff’s counsel to call the attention of the judge to it.

The question then arises, if the legal proposition embodied in the charge is correct. Upon no hypothesis, it appears to me, can it be claimed that a vendor, relying upon representations made.by the vendee -to another person, in another transaction and at another time, can, for that reason alone, hold the person making them for fraud. Certainly not, when the representations were not made for the purpose of being communicated to, and there was no intention to influence, the vendor thereby. This speóies of evidence is not admissible for any such- purpose. The action is based upon the representations made by the vendee to the vendor, and it is only to show the quo anima, and for no other purpose, that contemporaneous statements of a similar character are admitted in evidence. (Cary v. Hotailing, 1 Hill, 311.) The jury could not have been misled by the charge of the judge, if the doctrine laid down was abstractly correct, as it appears to have been; nor could it in any way have diverted their attention from the real question in the case, whether the goods were purchased fraudulently, which was properly presented to them. As evidence of contemporaneous statements of the purchaser, it was of no consequence if the representations were communicated to the. plaintiff. As a proposition, however, in regard to which the judge was doubtless called upon to charge distinctly, it was of some importance if the statements were made ¡vith the intent to influence, and for the purpose of being communicated to, the plaintiff. If they were made with any sugh intent, the effect of the evidence would be greater and more controlling. Conceding that it is of no importance, in reference to the general intent, whether they were so made or. not, yet it does not in any way disturb the general principle involved in the charge, that a false representation to a third party, made without any intent to be commmunicated to and to influence the vendor in another transaction, cannot of itself render a sale of property in that transaction fraudulent. So far as the principal facts of the case are concerned, I assume that they have been fairly submitted to the jury, and I do not see how they can in any way affect the question arising upon the exception taken to the charge. While the evidence in the case tends strongly to establish a fraudulent intent on the part of the purchaser, and the verdict of the jury may not be entirely satisfactory, I do not see, after an attentive and critical examination, that any rule of law has been violated.

A new trial must therefore be denied.