Majority
p. 391Wallace & Christopher vs. Morss impleaded with Bond.
Headnote
An infant who fraudulently obtains goods upon credit, with an intention not to pay for them, is liable in tort to the party injured.Motion in arrest. The declaration contained six counts, three of v/hich charged, in substance, that the defendant Bond colluded with Morss, the other defendant, to induce the plaintiffs
p. 392insisted, inter alia, that an infant could not be made liable in tort for damages on account of goods sold to him, though the sale was obtained by fraud. They cited and commented on Jennings v. Randall, (8 T. R. 335;) Curtin v. Patton, ( 11 Serg. & Rawle, 310 ;) Penrose v. Curren, ( 3 Rawle, 351 , 453;) 2 Kent's Comm. 240, 1; The People v. Kendall, ( 25 Wend. 399 ;) Johnson v. Pie, (1 Lev. 169;) Manley v. Scott, (1 Sid. 129;) Green v. Greenbank, (2 Marsh. (Ken.) Rep. 485;) Cowroe v. Birdsall, (1 John. Cas. 127;) Campbell v. Stakes, ( 2 Wend. 137 ;) Brown v. Treat, ( 1 Hill, 225 .) cited Cary v. Hotailing, ( 1 Hill, 311 ;) Olmsted v. Hotailing, (id. 317;) Badger v. Phinney, ( 15 Mass. Rep. 359 ;) Sikes v. Johnson, (16 id. 389 ;) Bristow v. Eastman, (1 Esp. Rep. 172;) Word v. Vance, (1 Nott & M’Cord, 197;) Homer v. Thwing, ( 3 Pick. 492 .)
to sell certain goods on credit to the said Morss, by fraudulently representing him to be a person fit to be trusted &c., and fraudulently concealing the fact of his being an infant; and that afterwards, by means of such fraudulent representation and concealment, the plaintiffs were induced to sell and did sell said goods to said Morss on credit, he being an infant, and purchasing and receiving the goods with intent not to pay for them, &c. The other counts were in trover for the goods. The defendants interposed separate pleas of the general issue. Verdict, that the defendant Morss was guilty, and the defendant Bond not guilty. The circuit judge certified that all the evidence given at the trial applied to the counts in trover, as well as to the other counts. Morss now moved in arrest of judgment.
F. B. Cutting & S. Sherwood, for the defendant Morss,
C. McVean & J. S. Bosworth, for the plaintiffs,
The only question of moment is, whether an infant be chargeable by action for a tort in obtaining goods fraudulently, with an intention not to pay for them. We think he is, both on principle and authority. (Badger v.
p. 393
Phinney, 15 Mass. Rep. 359 ; Homer v. Thwing, 3 Pick. 492 ; Cary v. Hotailing, 1 Hill, 311 ; Olmsted v. The Same, id. 317 ; The People v. Kendall, 25 Wend, 399 .)
Motion denied.
Cases cited
- People v. Kendall 25 Wend. 399 p. 392
- Campbell v. Stakes 2 Wend. 137 p. 392