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to $65. Should you keep imported Havana segars, please quote the prices, and, it convenient, send also a few samples. “Very respectfully,
H. Brinker." "Office of Herman Brinker, 63 Grand River Ave.
"Detroit, Michigan, Sept. 28, 1885. “Mr. J. F. J. Xiques, New York-Dear Sir: Yours of Sept. 25th received, and would be pleased to see samples of domestic and imported cigars. Domestic to range in prices from $25 to $35, and $55 to $75, and imported up to about $150 per mille. Please send per American express. “Very respectfully yours,
H. Brinker." Shortly after the reception of the last letter the plaintiff sent samples of cigars, of the value of $63.17, addressed to “Herman Brinker, 63 Grand River Avenue, Detroit.” Afterwards the plaintiff received the following letter and order: "Office of Herman Brinker, 63 Grand River Ave.
"Detroit, Michigan, Oct. 5, 1885. “Mr. J. F. J. Xiques, New York-Dear Sir: Yours of the 1st ipst. and samples to hand, and sent you inclosed an order for 5 milles imp. cigars. Please ship saine per Blue Line fast freight, via Canada Southern. Some of the domestics that you sent me I think will take here, and will see what can be done with them. Please send me samples of your Picadura Cheroot, and I have no doubt that I can handle it satisfactorily if the price is not too high and goods acceptabile. You did not quote price for them. If I should introduce the brand, I would, as a matter of course, expect to have sole control of same for Detroit and vicinity, as per your proposal. "Expecting to hear from you, “Very respectfully,
H. Brinker." "Office of Herman Brinker, 63 Grand River Ave.
"Detroit, Michigan, Oct. 5, 1885. “Order, per fast freight, Blue Line, via Canada Southern: milles Fanita
Medianos 77 1
Bouquets 115 1
Esp. 91 1
Reg. Reina Ex. 105 *Please select medium colors."
On the 7th of October, 1885, the plaintiff sent the following inquiry to the defendant: “Bradstreet's. Nos. 279, 281, 283 Broadway.
“New York, Oct. 7, 1885. “Give us in confidence, for our exclusive use and benefit in our business, as per contract, the results of your investigations concerning the character, standing, responsibility, etc., of Name
Herman Brinker. Business
Grocer. Street and No..
.63 Grand River Ave. City (or P. O. Address). County State
Michigan. "J. F. J. Xiques, Subscriber,
"192 B'way, P. O. Address. “No information will be furnished except upon the proper filling up of this blank, and the signature of the subscriber.”
Stamped on face: “Western Department, New York, Oct. 14, 1855. “Rec. 3/22/82."
To this inquiry the defendant replied as follows: “Brinker, Herman. Grocer & Saloon. Detroit, Michigan. 573 Russell, cor.
"Has continued doing quite fairly since last report, and has been making steady headway. Property has also grown some in value, and he is now estimated worth 3 to $5,000. Reported as a cash buyer here in most instances, but would be granted a moderate line if he asked it. Is spoken of as a German of very fair character, etc.
"60. 10-21–1885. 27-3. V. D. Oct. 12, 1885."
Indorsed as follows:
"N. Y. 10-14, 1885. "TO J. F. J. Xiques: The correctness of this report is not guarantied, 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 the contract existing between us. "Respectfully,
The Bradstreet Company."
October 15, 1885, the plaintiff shipped 5,000 cigars, pursuant to the foregoing order, of the value of $455, via the Canada Southern Blue Line, addressed to "Herman Brinker, 63 Grand River Avenue, Detroit, Michigan,” which were delivered on the 19th of the same month to some person calling himself Herman Brinker, at No. 163 Grand River avenue. The cigars were not paid for, and, Brinker not making any reply to the plaintiff's letters, the latter addressed the following inquiry to the defendant: "Bradstreet's. Nos. 279, 281, 283 Broadway.
“New York, Dec. 10, 1885. "Give us in confidence, for our exclusive use and benefit in our business, as per contract, the results of your investigations concerning the character, standing, responsibility, etc., of Name
Herman Brinker. Business
Cigars. Street and No...
.63 or 263 Grand River Ave. City (or P. O. Address).
Detroit. County State
Mich. "J. F. J. Xiques, Subscriber,
"192 B'way. P. (). Address. “No information will be furnished except upon the proper filling up of this blank, and the signature of the subscriber."
Stamped on face:
To this inquiry the defendant made the following reply: (20) "Brinker, Herman. Cigars, etc. Detroit, Mich. 63, 103, or 263 Grand
River Ave. “No such party can be found at any of the numbers given above. Neither is there such a number as 597 Russell St. The only person of above name known here is at 573 Russell Street, corner Ohio.
“Dec. 16, 1885."
Indorsed on back:
18 “To : The correctness of this report is not guarantied, 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 the contract existing between us. "Respectfully,
The Bradstreet Company."
On the 18th of December, the plaintiff inquired of the defendant: "Have you any further reports of Herman Brinker, 63 Grand River Avenue, Detroit, Michigan?” To this inquiry the defendant made the following reply: "7.
“Brinker, H. Cigars. Michigan, Detroit. 163 Grand River Ave. "Upon a close investigation of this case it is found that such a party, who is described as a light-complexioned man, aged about 35 or seven years, rented a small space in front room at above location during the latter part of Sept. last of Geo. R. McDonald, who occupies the place as a plumbing shop and dwelling, at a rental of $2 per month. He paid his rent as agreed upon, but said very little about himself, except that he admitted that he was a married man, and claimed to be making $10 or more a day. No information was, however, volunteered as to his previous abiding place or business. Was in and out every day or so, looking for mail or other matter, and replenishing his satchel from the occasional packages of goods which came to the store for him, the last one of which he emptied about six weeks ago, since which time nothing has been seen or heard of him. He left no directions as to his mail matter either with McD. or with P. O. authorities. The Cartage Co. who delivered the goods looked for him first at No. 63 nd River, the mdse. having been billed out to that number, but, not finding him, were referred to the one above. The different packages were receipted for and charges paid by Mrs. McDonald at B.'s request, he having exhibited bills of lading to the Cartage Co., who eventually got his acknowledgment on all of the receipts except the last one, in which instance they deemed to have neglected the matter. The last delivered to the above address was one case of cigars via. Blue Line, way bill 3351, Canada Southern Line. Car No. 15,099. Left N. Y. Oct. 16th, arrived here Oct 20th, and was delivered same day. A comparison of signature on copy of letter inclosed with that of Herman Brinker, 573 Russel St., shows no similarity. Over 200 of these were carefully examined at his bank, where a savings account has been kept ever since 1876. Aside from this, he is not a man who would become a party to any such transaction as above named.
"Dec. 24, 1885.
"N. Y. Dec. 28, 1885. "To J. F. J. Xiques: The correctness of this report is not guarantied, 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 the contract existing between us. "Respectfully,
The Bradstreet Company."
This action was brought to recover the value of the samples first shipped, and of the cigars shipped pursuant to the order of October 5, 1885. On the trial the plaintiff failed to show that it made any inquiry of the defendant before the shipment of the samples, and he abandoned all claim to recover on account of them. men of the complaint is that "the defendant, without any investi
gation or inquiry, and without having any knowledge or information concerning any man of the name inquired after, carelessly and negligently reported that Herman Brinker of Russell street was worthy of credit.” It is to be observed that by the terms of the contract entered into between the litigants it was expressly stipulated “that said company shall not be liable for any loss or injury caused by the neglect or other act of any officer or agent of the company in procuring, collecting, and communicating said information." Under this stipulation the defendant cannot be held liable for the consequences of misinformation, unless it is so grossly neg. ligent in acquiring or communicating it that its conduct in effect amounts to a fraud.
The first question presented for consideration is, .was the evidence sufficient to raise an issue of fact for the jury as to whether the defendant was grossly negligent in answering the plaintiff's inquiry? The plaintiff
, by his letter of October 7th asked for a report in respect to Herman Brinker, grocer, 63 Grand River avenue, Detroit.
The defendant's reply of October 12th related to Herman Brinker, grocer and saloon, 573 Russell, corner Ohio, Detroit, Michigan. The letters written to the plaintiff by Brinker do not purport to come from a person engaged in business as a grocer, nor, indeed, do they show that the writer was engaged in any business other than as a dealer in cigars. The communication of the defendant did not purport to relate to Herman Brinker of 63 Grand River avenue, but distinctly referred to Herman Brinker, a grocer, engaged in business at 573 Russell street. The plaintiff offered no evidence tending to show that the defendant did not make prop er inquiries of its correspondents at Detroit, and the allegation in the complaint that it did not was entirely unsupported by the evidence. It is very plain upon the face of the defendant's communications that it did not assume to give any information in regard to the financial standing of Herman Brinker of 63 Grand River avenue; and, the plaintiff having failed to show that the defendant did not make inquiries, we are unable to see how it can be successfully maintained that he established that the defendant was negligent either in the inquiry which it made or in communicating the information. The nature of the business in which the defendant is engaged is such that reliable information as to the wealth and integrity of persons engaged in business cannot be guarantied. Dealers are often honestly mistaken as to their own financial situations, and the means of others for learning their exact condition are limited, and often uncertain. If the truth could in all cases be learned and reported, those giving credit would seldom, if ever, sustain a loss. All that can be demanded of such a corporation is that it shall make due and diligent inquiries, and furnish the results to its customers. It seems to us that the evidence in this case shows that the defendant made such inquiry in respect to the business standing of the person inquired after, and, failing to find the person described engaged in business at the place designated by the plaintiff's letter, made a report about another person, engaged in a similar business at another place in the same city. The defendant did not guaranty that the person reported was the person inquired after, which appears upon the face of the communications which it sent to the plaintiff.
Did the plaintiff, by his negligence, contribute to the loss of his goods? After having received the defendant's communication, which related solely to a person doing business at No. 573 Russell street, without making further inquiries, he shipped his goods to a person of the same name, purporting to be engaged in business at No. 63 Grand River avenue. The evidence shows that a man by the name of Herman Brinker was at the time engaged in business at No. 573 Russell street; that he was in good credit, worth from three to five thousand dollars, and that the information furnished in respect to this person was correct. Whatever of negligence there was in the case was the plaintiff's in shipping goods to a person at a street and number about whom no information had been given by the defendant. The plaintiff having received reliable information in respect to the standing of Herman Brinker of Russell street, negligently shipped his goods to a Herman Brinker of 163 Grand River avenue, at which place no person by that name was engaged in business. They were delivered by the carrier to some person who called himself Herman Brinker, at No. 163 Grand River avenue. This negligence was the cause of the plaintiff's loss. We think that the trial court correctly ruled that there was no question of fact for the jury.
The judgment should be affirmed, with costs.
VAN BRUNT, P. J. I concur. There was no attempt to furnish any information as to a man located on Grand River avenue. It was a man doing business at 573 Russell street, corner Ohio, that was reported upon, and no goods were sent to him.
PARKER. J., concurs.
(70 Hun, 131.)
GRAFTON V. BRIGHAM et al. (Supreme Court, General Term, First Department. June 30, 1893.) 1. GENERAL APPEARANCE-WAIVER OF DEFECTS IN SERVICE OF PRECEPT.
In summary proceeding before a justice to dispossess tenants for nonpayment of rent, an irregularity in the service of process is cured by
defendants' general appearance on the return day. 2. RES JUDICATA-SUMMARY PROCEEDINGS-LIABILITY OF TENANT FOR RENT.
A judgment in a summary proceeding by a landlord, dispossessing tenants for nonpayment of rent, is conclusive of their liability for rent in a subsequent action against them to collect it. Appeal from circuit court, New York county.
Action by Elizabeth Grafton against William T. Brigham and others for rent. From a judgment entered on a verdict directed in favor of defendants, plaintiff appeals. Reversed.
Argued before VAN BRUNT, P. J., and FOLLETT and BAR RETT, JJ.