Claflin v. Flack — 36 N.Y. St. Rep. 728

Majority

p. 728

John Claflin et al., Resp’ts, v. James A. Flack, Sheriff, App’lt.

(New York Common Pleas, General Term,

Filed February 2, 1891.)

Headnote

Sale—Fraudulent representations—Mercantile agency.

Plaintiffs sold goods to the firm of K. & F., relying on a report of a commercial agency as to a statement made to it by K. & F. of their financial standing. Before the delivery of the goods the agent of said agency called on K. & F. for another report, but they refused to give one. The application was not made at the instance of plaintiffs nor was the refusal communicated to them. Held, that the representation of solvency made to the agency was a continuing one, a recall of which was necessary to relieve K. & F. of liability to persons who extended credit in reliance thereon, and that the refusal to make a new statement was not sufficient for that purpose and did not affect plaintiffs’ right to rescind because of the falsity of the representation made.

Appeal from judgment of the general term of the city court of Hew “York, affirming judgment entered on a verdict in favor of plaintiffs and order denying motion for a new trial on the minutes.

Action to replevin certain goods levied upon by defendant under executions against the firm of Kayton & Feustman. The goods in question were sold to Kayton & Feustman by plaintiffs on credit, relying on a report of a commercial agency that Feustman had stated that the firm had a stock of the value of $12,000 and owed only $3,000. The evidence tended to show that at the time of such statement the firm owed over $5,000.

• Sullivan & Cromwell, for app’lt; David Leventritt, for resp’ts.

Appeal from judgment of the general term of the city court, affirming a judgment on the verdict of a jury and an order denying a motion on the minutes for a new trial.

Beplevin to recover certain goods or their value, alleged to have been obtained from plaintiffs by fraudulent misrepresentation.

The case omits the statement that it contains all the evidence; and so we are precluded from inquiry into the facts by the presumption, in support of the judgment, that the proof was sufficient to carry the case to the jury and to warrant the verdict. Arnstein v. Haulenbeek, 34 N. Y. State Rep., 297; Cheney v. R. R. Co., 16 Hun, 415 .

Perhaps, however, we are authorized to review the motion for dismissal of the complaint, on the ground of a fact affirmatively appearing in the record, and which, it is contended, suffices to defeat the action. “ ' "

The misrepresentation by which credit was acquired with plaintiffs was made to a mercantile agency, and by that agency commu

p. 729

nicated to plaintiffs. Before plaintiffs acted on the misrepresentation the agency again called on the purchasers of the goods for another report of the condition of their business; but they declined to furnish it. But it does not appear that the agency so called at the instance or in the interest of plaintiffs, or that the fact of the refusal of another report was communicated to plaintiffs. The fact, therefore, does not affect plaintiffs; and since the representation of their solvency which the purchasers lodged with the agency was, in its nature and purpose, a continuing one, a recall of it was necessary to relieve them of liability to persons who extended credit in reliance on the representation. Had the purchasers, instead of merely refusing another report, expressly withdrawn the one formerly made, a question different from that before us would have been presented.

We have examined the exceptions in the record; but we find none to be well taken, or of sufficient plausibility to require discussion.

The argument of appellant that the misrepresentation of the purchasers was too remote in time from the credit by plaintiffs, is not supported by the facts; for it appears that plaintiffs received the report from the agency “ in the spring or early summer of 1889,” and they commenced the credit with the purchasers in June of the same year.

We may add, in conclusion, that, assuming all the evidence to be before us, we think the verdict in accordance with the clear preponderance of proof.

Judgment and order affirmed, with costa

Allen and Bischoff, JJ., concur.