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parted with any value, nor surrendered anything whatever on the faith of it. If they had, they would stand in a very different legal position, requiring the exclusion of this defense. But if they shall be deprived of this credit by the proof of this defense, their account will stand, as it did before, as a legal demand against their debtor Levy. Their right to enforce and collect it will be in no manner affected by the fact of this credit, and its effacement through proof of the fact that Levy had no authority to use the note for that object. And where that is the condition of the holders of commercial paper fraudulently diverted from the purpose for which it had been made and indorsed, there the maker and indorser may relieve themselves from liability upon it by proof of such facts as were proposed to be shown in this instance." 11 N. Y. St. Rep. 531.

On the second trial the question whether the maker received a consideration for the note from Levy was submitted to the jury, and found for the plaintiffs. The general term, in reviewing the case, (11 N. Y. Supp. 100,) again held that, under the undisputed evidence given by and in behalf of the plaintiffs, they surrendered nothing when they received the note in January, 1886; that they were not holders for value; and that their subsequent discharge of Levy from all liability on the account did not affect the legal status of the plaintiffs at the time they received the note. The learned referee in deciding this case followed the rule laid down by this court in this case, and it may be added that the rule as stated is supported by a long line of adjudications in this state.

The judgment should be affirmed, with costs. All concur.

(70 Hun, 405.) WAKEFIELD RATTAN CO. V. TAPPAN, Sheriff. (Supreme Court, General Term, Third Department. July 8, 1893.) 1. SALE-RESCISSION-FRAUD.

A partner stated to a person of whom the firm had ordered goods which were subsequently delivered, that the firm was prosperous, and that its financial condition was all right. It appeared that the firm was doing a reasonable amount of business, and its apparent assets far exceeded its liabilities. Held, that the sale would not be set aside as procured by fraud where the firm afterwards proved insolvent, unless it were shown that the statements as to the financial condition of the firm were made

with knowledge that they were false. 2. EVIDENCE-STATEMENTS OF AGENT.

Statements as to the financial condition of a firm, made by its book. keeper to a mercantile agency, are not admissible in evidence against the firm unless the bookkeeper had authority to make such statements, or that they were made with the knowledge of the firm. Appeal from circuit court, Rensselaer county.

Action by the Wakefield Rattan Company against Shepard Tappan to recover possession of goods seized by defendant as sheriff of Rensselaer county. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals. Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Ryan & Landon, (James H. Ryan, of counsel,) for appellant.
Frank S. Black, for respondent.

MAYHAM, P. J. This action was prosecuted by the plaintiff . against the defendant to recover the possession of 54 baby carriages and 22 brakes, of the value of $632.35. The case showed that the property was seized by and held under an execution issued out of the supreme court in favor of the National Bank of Troy against the Isaac Keith Company, and the theory of the action was that the Keith Company had no title to the property sought to be recovered, by reason of an alleged fraud, claimed to have been perpetrated upon the plaintiff by the Keith Company in the purchase of such goods. The case shows that the Keith Company was a firm doing business in Troy, which succeeded to a business formerly carried on by Isaac Keith, and consisted of a copartnership composed of William M. Hyland and Phoebe Link, and at the time of the organization of this copartnership one Frank Andros, who had been the bookkeeper of Isaac Keith, deceased, continued in that capacity in the employment of the Isaac Keith Company. Soon after the Isaac Keith Company commenced carrying on business this bookkeeper was called upon by one W. C. Daboll, the manager of the R. G. Dun Mercantile Agency at Troy, and requested to make a statement of the financial condition of the firm at that time. Pursuant to that request, Andros informed the mercantile agent what the inventory of the firm disclosed, giving in gross the value of the different articles of merchandise, the cash on hand, bills receivable, and the total of such assets; also purporting to give bills payable and book accounts, constituting the liabilities of the firm, and showing net assets of $39,527.04. This statement was forwarded to the Edward Russell Company Mercantile Agency in Boston. The mercantile agency also in the same communication gave what purported to be the financial standing and business character of the Isaac Keith Company, and the personal and financial character of the members of such firm. This statement was made on the 1st day of March, 1890. The case also showed that on the 13th of September, 1890, one William A. Coffey, a reporter of the R. G. Dun Company, called on Andros, the bookkeeper of the firm, and received from him further statements in reference to the standing and responsibility of the Isaac Keith Company, which Coffey reported to the Boston Mercantile Association as follows:

"September 14th, 1890. "Mr. Frank Andros, m:nager, tells us to-day that there has been no change in their affairs since statement last March. They seem to be doing their share of the business, and believed to be holding their own. They are people who are well spoken of personally, pay their bills with average promptness, and are looked upon as being responsible for their engagements."

The above statement and the said representations were submitted to Seaver, the cash and credit clerk and salesman of the plaintiff, about the 7th or 8th of February, 1891. The case shows that the house of Isaac Keith had for some time been in the habit of purchasing goods of the plaintiff. About the 1st of February, 1891, John Brcckett, traveling salesman of the plaintiff, called at

the store of the Isaac Keith Company, and had a talk with William M. Hyland, a member of the firm, in which the latter stated that they had had an unusually good holiday business, and that the business was prosperous, and the concern was doing a nice business, and everything was looking promising, and its financial condition was all right. Brockett, the agent of the plaintiff, made no examination or inquiries as to how much stock the firm had, and how much in accounts were due and owing to them. The case discloses no other recommend or statement of the pecuniary standing or responsibility of the Isaac Keith Company, or of the individual members composing that company, prior to the time of making the order for the goods. At that time an order was given by the firm and accepted by Brockett in behalf of the plaintiff for 54 baby carriages, with a request that they should be forwarded right along. The order of this class of gocds by the Isaac Keith Company previous years was from $50 to $400 a year. The order on this occasion was for about $600 worth of goods. The goods were delivered and received pursuant to the order, and placed in stock in the Isaac Keith Company's store. The testimony of Frank Andros shows that at the time of making the report to the R. G. Dun Mercantile Agency the same was a correct statement and inventory of the assets of the Isaac Keith Company according to his best judgment, deducting $10,000 as a liberal shrinkage on the book account for doubtful debts. On the 20th of March, 1891, the Central National Bank of Troy recovered a judgment against the Isaac Keith Company for $6,170.93 upon a note of $6,000, given by that company on the 21st of October, 1890, for money loaned. On the 23d day of March, 1891, Elizabeth Hyland recovered a judgment against the Isaac Keith Company for $3,078.91, being upon a demand note of $3,000, given by that company for borrowed money. These two judgments constituted the only judgments recovered against the Isaac Keith Company, which appears from the evidence. On the 23d of March, 1891, Harriet S. Keith recovered a judgment against William M. Hyland, one of the firm of the Isaac Keith Company, for $5,016.51. This judgment appears to have been recovered on five promissory notes of $1,000 each, made by William M. Hyland to Harriet L. Keith, dated February 3, 1890. On the 23d of March, 1891, judgment was entered in favor of Hay. wood Bros. against William M. Hyland and Phoebe Link in. dividually for $593.95. On the 23d of March, 1891, a judgment was entered in favor of Richard Cunningham, and entered against Phoebe Link and William M. Hyland, for $1,542.01. This judg. ment was upon a note made by Phoebe Link and indorsed by William M. Hyland, dated December 9, 1890. An execution had been issued on the individual judgments against Harriet L. Keith and William M. Hyland, which was not, however, levied upon the property of the Isaac Keith Company, but was directed to be satisfied out of the personal property of said judgment debtors, cr either of them, and did not contain a direction to levy against the property of the Isaac Keith Company. The evidence shows that

the defendant, as sheriff, received and held an execution on the judgment in favor of the Central Naticnal Bank, under which he seized and held the property of the Isaac Keith Company; and while so holding the same a mortgage against the Isaac Keith Company in favor of H. B. Claflin & Co. for $4,000, and one for Peter McCarthy of $1,500 against the Isaac Keith Company, were also placed in his hands for collection. It does not appear from the case that an execution from the Elizabeth Hyland judgment against the property of the Isaac Keith Company had been issued to the defendant at the time of the commencement of the plaintiff's action to replevin the baby carriages. The total liabilities, as appears from the evidence, which were being enforced against the property of the Isaac Keith Company at the time plaintiff commenced this action, was for the $6,170.93 on the bank judgment and $5,500 on the two chattel mortgages above referred to, and the aggregate assets, as appears from the evidence, including the book of accounts, of the Isaac Keith Company amounted to $47,000.

Assuming, therefore, that the representations made by the Isaac Keith Company's bookkeeper could be held as representations made by the company, and that the statement made by William M. Hyland to the plaintiff's sales agent, Brockett, could be treated as representations of the Isaac Keith Company of their solvency and responsibility, it is difficult to see how such representations per se can be regarded as fraudulent as to the financial ability of the Isaac Keith Company. Confessedly, upon this showing, the company was at that time solvent. It is true that it owed debts, but its apparent assets were far in excess of its liabilities. No actions had been ccmmenced against it at the time of its purchase of these goods, and no judgments had been perfected against it at that time. The two mortgages alone, which were capable of being summarily enforced, seem to constitute the only liability against which the Isaac Keith Company could be compelled to provide at once. The sale of these baby carriages from the plaintiff to the Isaac Keith Company seems to have been absolute and complete, and the title to these carriages vested in that company, unless at the time of the sale the company practiced such a fraud upon the plaintiff as to render the contract of the sale and the delivery under it void. Before the plaintiff can recover the possession of the property sold under such circumstances, it must establish five distinct propositions tending to defeat the contract: First, the representations; second, their falsity; third, the scienter or guilty knowledge of the person making the representations; fourth, that the purchaser relied upon and was deceived by the representations; fifth, the damages resulting to him in consequence thereof. In Arthur v. Griswold, 55 N. Y. 410, Church, C. J., in discussing the question of fraudulent representations in the sale of stocks, where the validity of the sale was challenged on the ground of fraud or of fraudulent representations by the vendor as to the solvency of the corporation, uses this language:

V.24n.Y.s.no.5-28

“Such an action cannot be sustained upon displaced confidence induced by vague surmises. The rule of law requires a reasonable degree of certaiuty as to eich requisite necessary to constitute the cause of action, viz. representation, falsity, scienter, deception, and injury.”

And this language was reiterated by Andrews, J., in Brackett v. Griswold, 112 N. Y. 467, 20 N. E. Rep. 376, and the learned judge adds:

**There must have been false representation, kaown to be such, made by the defendant, calculated and intended to influence the plaintiff, ani which came to his knowledge, and in reliance upon which he in good faith parted with property or incurred the obligation which occasioned the injury of which he complains. All these circumstances must be found to exist, and the absence of any one of them is fatal to the recovery."

In Nichols v. Pinner, 18 N. Y. 295, it was held that mere omission of the purchaser of the gcods to disclose his insolvency to the vendor is not a fraud for which the sale may be avoided. That was an action like this, to recover the possession of personal property sold by the plaintiff to the defendant upon the allegation that the defendant purchased the same fraudulently, and with a design not to pay for them.

The complaint was for a wrongful detention of the property. Pratt, J., in delivering the opinion of the court said:

*To constitute a fraud in such a case there must be an intention 10 cheat; at least there must be an intention to do an act, the necessary result of which will be to cheat and defraud another. But it is clear that such intention is not necessarily inferable from the fact that a man in good credit, going on with his regular business, makes his usual purchases for the purpose of continuing that business after he is made aware that his property is not sufficient to pay his debts. It is not fraudulent in him to make reasonable effort to retrieve his fortune, or to extricate himself from his embarrassinent. It is not unnatural that he should cling to the hope that better times would come; that to-morrow should be as this day, and much more abundant; and that with this hope, however de lusive results may have shown it to be, he should have been impelled to buy more goods, contract new debts, and struggle on until some casualty should precipitate the catastrophe upon him, and he find himself hopelessly bankrupt. This is an every-day experience in the commercial world; and it would be hard, indeed, if the unfortunate victim of hopes that looked to him at the time as reasonable must, in his misfortunes, be judged by the actual instead of the possible results. The authorities do not sustain any such doctrine, but the reverse.”

And the learned judge in this case, in further discussing the question, uses this language:

“Fraud must be proved atlirmatively. The presumption is :lways in favor of innocence, and not of guilt. The evidence should, therefore, be direct and strong which would authorize the repudiation of a contract upon the ground of fruud, especially in executed contracts of sale, where the goods have been delivered and become ningled with the mass of the purchaser's other property."

The cases just cited proceed upon the theory that the purchaser knew or had reason to believe himself insolvent at the time of making the purchase. There is no evidence in this case that the Isaac Keith Company, or the members of that firm, had any reason to suppose that firm insolvent. The evidence, so far as it discloses the apparent condition of the firm, shows net assets above any liabilities which are disclosed by the evidence upon the inventory

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