Mosler Safe Co. v. Hartog — 55 N.Y.S. 624

Majority

p. 624

(26 Misc. Rep. 14.)

MOSLER SAFE CO. v. HARTOG et al.

(Supreme Court, Appellate Term.

January 23, 1899.)

Headnote

Action for Fraud—Evidence.

A safe, sold to a firm to be delivered at a stated time, when the price was to be paid, was delivered before then without any demand for payment. Shortly after the time originally fixed for payment, and a month and a half after delivery, it was mortgaged to the wife of one of the firm, and one of the buyers, when a return of the safe was demanded, stated that he knew how to get around paying for it. The financial condition of

p. 625

the buyers was not shown, and there was no prooí of any misrepresentation of it. Held riot to warrant a finding that the sale was procured by the fraud of the buyers.

Appeal from municipal court, borough, of Manhattan, First district.

Action by the Hosier Safe Company against Albert Hartog and another, as partners. From a judgment for plaintiff, defendants appeal.

Reversed.

Argued before BEEKMAN, P. J., and GILDERSLEEVE and GIEGERICH, JJ.

Weeltes Bros., for appellants.

Page & Ecltley, for respondent.

This action was brought to recover damages for fraud in obtaining a safe under a promise to pay the purchase price in cash upon delivery of the same. The answer was substantially a general denial. The safe was sold on September 9, 1897, for $187.50, and was to have been delivered on November 1, 1897. It seems, however, according to the testimony of the defendant Albert Hartog (who is not contradicted in this respect), that the safe was received by the defendants on or about October 1, 1897, “as a personal favor to the plaintiff.” There was no demand made, at the time of the delivery, for the purchase price, and the first request for payment which the record discloses seems to have been made some time during the month of November in the same year. Support for the allegation of fraud is sought to be derived from the fact that on the 15th day of November, 1897, the defendants gave a chattel mortgage to the wife of one of the members of their firm to secure the payment of $2,850, and, further, from the alleged statement of one of the defendants, made, as claimed, when a return of the safe was demanded, “that he had a big law library, and knew all the law, and knew how to get around it.”

It is undisputed that, at the time the order for the safe was given, neither of the defendants made any representations as to their pecuniary responsibility. The plaintiff offered no proof whatever with respect to the financial condition of the defendants’ firm during any part of the period above mentioned, except such as may be inferred from the making of the chattel mortgage, and, for all that appears to the contrary, the firm may have been solvent when that mortgage was given. The mortgage, as above shown, was executed more than a month and a half after the safe was received by the defendants, and there is no satisfactory proof from which it might reasonably be inferred that they had secured possession of the same with the preconceived idea of not paying for it, while the only direct evidence is to the effect that the defendants reluctantly received the safe, and did so solely at the plaintiff’s solicitation.

Under these circumstances, the judgment for the plaintiff is not supported by the weight of the evidence, and it must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.