Holman v. Dord & Rowe — 12 Barb. 336

Majority

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Holman vs. Dord and Rowe.

Headnote

In an action on 'the case on a false warranty, it is enough to aver, and to prove, that the warranty was false, and that the purchaser was deceived by it.

Where some evidence is given tending to show a particular fact, it is competent for the jury to find that such fact existed; and their verdict must be very clearly against the weight of evidence, to justify the court in disturbing it.

Upon the sale of goods, which were fancy articles, it was falsely stated by the agents of the owner, that they were French goods, new, and in good order, and just imported from France; Held, that such representations were not mere puffing ones, nor statements as to the value or condition of the goods which mere inspection could detect; but that the averments were material, as the goods were a fancy article depending in a great degree for their value upon the fact that they rvere French, just imported, and new; and, consequently, fashionable and salable.

Although the code, (§ 397,) enacts, broadly that a party may be examined on behalf of his co-defendant, there are two limitations to the right. One is under § 397; that the examination thus taken shall not be used on behalf of the party examined. And the other is under §§ 398 and 399; that the party may be excluded, by reason of his interest in the event of the action.

There is nothing in § 397, to justify the exclusion of a party as a witness for

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his co-defendant in an action of tort; where, even under the old practice, á separate judgment could have been given against one defendant and for his co-defendant; and thus it would be easy to prevent the witness’testimony in behalf of his co-defendant, from being used in his own behalf.

The phrase “ interest in the event of the action,” in §§ 398 and 399, does not mean an interest in any event of the action; but an interest in the event, as respects, the party who calls him as a witness.

This was an action on the case, brought by the plaintiff, James S. Holman, against Claudius Dord, Daniel Behrman and Edward Rowe, defendants. The declaration, entitled of May term, 1847, contained five counts; the three first alledging, in substance, fraudulent representations of the description, quality, and value of certain goods belonging to the defendant, Dord, and which were by him delivered to the plaintiff, in exchange for a conveyance of real estate in the state of Texas, executed and delivered by the plaintiff to the defendant, Dord, on first of April, 1847. The fourth and fifth counts were in trover for the deed of conveyance of the plaintiff to Dord, described in the previous counts. The defendants, Dord and Rowe, appeared by different attorneys, and severally pleaded, not guilty; Behrman died after the commencement of the suit, and after a separate plea had been put in for him; but before the trial.

From the testimony on the trial it appeared, that the negotiation between the plaintiff and the defendant, Dord, was an exchange of Texas lands, for goods; that the plaintiff saw the goods at Dord’s store, and made some examination of them, or of a part of them; that Behrman acted as an agent between the plaintiff and Dord, and was paid by both of them; that Dord pointed out a lot of goods that he said were to be given in exchange for the lands ; that he referred the plaintiff to Mr. Rowe, who, he said, knew more about the matter than he did; and that whatever Rowe should do in it, would be satisfactory to him, Dord; that Rowe opened some of the boxes, and said that they were samples of the goods to be given, and that they were French goods; that Behrman said they were new, and in good order, and just imported from France; that the sum inserted in the condition of the deed for the land, was $9500; that the

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goods were not worth that sum; that they were not new, nor in good order, nor, all of them, French. It was also proved that after the barter was made, the plaintiff, on the 8th of April, 1847, wrote to the defendant Dord, that after an examination of the goods by competent and disinterested parties, and a comparison of their value by the bill of them, he was satisfied that a gross deception was practiced on him, to which he would not submit; that before he - should take any measures for redress, he had concluded to authorize his friend Mr. Jackson, to wait on Dord, with full authority to make some amicable arrangement, &c. Jackson testified that he called on Dord at his store, and delivered to him the letter, which he read, and then called for Mr. Rowe, who came down stairs instantly; Dord referred Jackson to Mr. Rowe with regard to the letter, and gave the letter to Rowe, who read it; Rowe said that Holman had no reason to complain; that the goods were the same that were sold him; Rowe said he knew the goods were not worth the money at the time, not worth the amount in cash; it was a barter trade, and what they got they did not consider worth the amount in money; that the invoice of goods had formerly come from New-Orleans, and was delivered over to Holman at the same prices; that the goods had come from New-Orleans about three weeks before.

After the plaintiff rested, the counsel for the defendants separately moved the court for a nonsuit, on several grounds which they specified. But the motion was overruled, and the defendants’ counsel excepted. The counsel for the defendant Dord, then called his co-defendant Rowe, to the stand, and offered him as a witness on behalf of Dord, under the provisions of the code of procedure. The plaintiff’s counsel objected to Rowe’s being admitted as a witness for Dord; and the justice decided, that Rowe was not admissible as a witness for Dord under the code, or for any purpose in this case. The counsel for the defendant Dord excepted to this decision, The charge which was given by the judge was not excepted to, The jury found a verdict for the plaintiff and assessed his damages at $8,195,33,

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E. Sandford and Joseph L. White, for the plaintiff.

/S'. B. H. Judah, for the defendant "Dord.

F. B. Cutting, for the defendant Rowe.

By the Court,

As to the objection arising on the pleadings, that there is no averment of a scienter, the answer is, that none was necessary. It is the action on the case on a false warranty, where it is enough to aver, and to prove, that the warranty was false, and the purchaser was deceived by it.

It is also objected, that there was no false warranty to bind Dord; that he made none himself, and that for what representations were made by Behrman he is not responsible, as Behrman was not his agent. It is evident that there was a false warranty, both by Rowe and Behrman. Rowe said they were French goods; and Behrman said they were French goods, new, and in good order, and just imported from France. There is no dispute that Rowe was acting for Dord, but the question was as to Behrman. Some evidence was given, tending to show that; and the question was submitted to the jury, by the judge, under instructions which have not been excepted to. And the jury have found that a false warranty was made by Rowe and Behrman, acting in behalf of Dord. It was competent for them to do so; and their verdict must be very clearly against the weight of evidence, before we can disturb it.

And there is no force in the objection that the representations proved were mere puffing ones, and ought not to have deceived ; because, an examination of the goods would have shown them to be false. They were not mere representations as to value, nor statements as to their condition, which mere inspection could detect. How could mere inspection ascertain that they were not French goods, just imported from France, or even that they were not new? Yet such averments were material, as the goods were a fancy article, depending in a great degree for their value, upon the fact that they were French, just imported, and new; and consequently, fashionable and salable'.

Rowe was offered as a witness for his co-defendant, and was

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excluded by the judge, who held that he was not admissible as a witness, for any purpose. The enactment of the code is, that a party may be examined on behalf of his co-defendant. (§ 897.) There are, however, two limitations or restrictions to the right thus broadly stated. One, is under § 397; that the examination thus taken shall not be used on behalf of the party examined: and the other, is under »§ 398 and 399 ; that the party may be excluded, by reason of his interest in the event of the action., Whether'the limitation in § 397, is enough to warrant the exclusion of a party, it is unnecessary to say. There may be eases where it would be impracticable to allow a party to be examined, without his testimony’s being used in his behalf. But even if this be so, this is not such a case; and there is nothing in that section to justify the exclusion of Rowe. This is an action of tort, where, even under the old practice, a separate judgment could have been given against one defendant, and for his co-defendant ; and thus it would have been easy to prevent. Rowe’s testimony in behalf of Dord, from being used in his own behalf.

It is, therefore, only under §§ 398 and 399, that any excuse for the exclusion of Rowe, can be found. And that must be on the ground that he was interested in the event of the action. That does not mean an interest in any event of the action; but an interest in the event, as respects the party who calls him as a witness ; and the inquiry therefore is, Had Rowe an interest in the event of the action, against Dord 1 I can not see how he had any such interest. His evidence could not be used in his own behalf, but only in behalf of Dord. And how could he be benefited by Dord’s discharge from the cause of action ? I can see how he might be benefited by keeping Dord in the action, even to judgment against him, because the greater the number who contribute to the payment of the judgment, the better for Rowe. And his interest, if any, is against the party calling him, and not in his favor.

I am aware of the conflicting views which some members of the court have taken of these provisions of the code ; but I do not perceive that any of them conflict with the result I have arrived at in this case; it being one where separate judgments

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might he rendered, and thus the evidence of Rowe prevented from operating in his favor; and where he had no interest in the event, except what was adverse to the party calling him.

[New-York General Term,

December 1, 1851.

He ought not to have been excluded; and for this error there must be a new trial; the costs to abide the event.

Edmonds, Mitchell and King, Justices.]