Hahlo v. Grant — 31 N.Y. St. Rep. 919

Majority

p. 919

Herman Hahlo et al., Resp’ts, v. Hugh J. Grant, as sheriff, et al., App’lts.

(Supreme Court, General Term, First Department,

Filed May 16, 1890.)

Headnote

1. Fraud—Evidence.

One S., on being required to make a statement on the purchase of goods, replied that he had made a statement to H., one of the firm, some months before, and was “ better than ever." This was communicated to Sohel, the clerk in charge of the credit department, and he thereupon allowed the shipment to be made, relying partly on such statement and partly on the statement of a mercantile agency. In an action to replevin the goods on the ground that such sale was procured by false representations and with intent to defraud, Held, that testimony that Sobel relied in part upon the statements previously made to H. was properly admitted.

3. Same.

In such action the fact that S. was subsequently asked to purchase goods from other merchants is immaterial, and evidence to show such fact was properly excluded.

Appeal from a judgment in favor of the plaintiffs rendered after a trial at circuit, and also from an order denying the defendants’ motion for a new trial.

David M'cGlure, for app’lts; Blumenstiel & ITirsch, for resp’ts.

The question here is purely one of fact. It was submitted to the jury under appropriate instructions, to which there was no exception. Every possible view of the case which could benefit the defendants was presented in the form of twelve separate requests to charge, and each one of these requests was charged. Under such circumstances, the only question is whether there was sufficient to justify the submission of the case to the jury, or whether the verdict was contrary to the weight of evidence. After a careful review of the testimony, we are against the appellants on both heads. There was ample evidence to justify the submission, and in our judgment the verdict was a righteous one. The appellants claim that the court erred in admitting and exclud-'

p. 920

ing testimony, and the exceptions on this head may be briefly considered. The action was in the nature of replevin for certain goods alleged to have been fraudulently obtained from the plaintiffs by one Shackman.

The plaintiffs took two positions, first, that the goods were purchased by means of fraudulent representations; and, second, that the purchase was with the pre-conceived design not to pay for such goods. In seeking to establish the fraudulent representations, it became necessary to connect a statement, made by Shackman to the plaintiff Hahlo, some months prior to the transaction -in question, with a statement made at the time of the purchase. And for this reason: Hahlo was in Europe at the time of the purchase, and the plaintiff, Woolf, who, in his absence, sold the goods to Shackman, asked the latter for a statement. Shackman replied, that he had not long since made a statement to Hahlo, and that he stood, at the time of Woolf’s inquiry, “ better than ever.” Woolf reported this observation to one Sobel, who was in charge of the plaintiff’s credit department, and Sobel, partly upon the strength of that statement, and partly upon the faith of information received from Dunn’s commercial agency, checked the bill and permitted the goods to be delivered. It thus became important to show that Sobel relied in part upon the statement made some months before by Shackman to Hahlo, and to that end the following question was put and answer given:

Q. What else did you do in connection with the shipment of these goods, besides obtaining the agency statement and the conversation with Mr. Woolf?

Objected to as immaterial; objection overruled; exception.

A. I took into consideration some information that I had received from Mr. Hahlo, I believe, towards the end of February, 1888. Mr. Hahlo, prior to that time, had communicated the statement made by Shackman to him as he stated.

We think this testimony was properly admitted. Hahlo went upon the stand and gave the original statement as it was made to him in externo. He communicated that statement to Sobel at the time it was made. When, therefore, Sobel was reminded thereof by Woolf, and was told that Shackman declared that he was then “ better than .ever” it was proper to show what Sobel really relied upon.

The question which was excluded was this, put to Shackman upon his direct examination:

Q. Subsequently to these purchases that you made of Hahlo & Go., had you been asked to purchase goods from other merchants in the trade ?

This question was an improper one and the objection to it was correctly sustained. The issue did not involve the question of an accumulation of goods fraudulently purchased from other persons after the transaction with the plaintiffs. Whether Shackman was subsequently asked to purchase goods from other merchants had; no bearing upon the intent with which he purchased those claimed! by the plaintiffs. The logic of the question seems to be that; Shackman’s honest intent with regard to the plaintiffs would be]

p. 921

■evinced by the fact that he had had an opportunity to cheat other people and did not avail himself of it.

There are no other questions in the case and the judgment and order denying motion for new trial should be affirmed, with costs.

Van Brunt, P. J., and Bartlett, J., concur.