Smith v. Mott — 48 N.Y. St. Rep. 300

Majority

p. 300

Albert C. Smith, Pl’ff, v. Charles E. Mott, Def’t.

(Supreme Court, General Term, Fifth Department,

Filed October 21, 1892.)

Headnote

Bills and notes—Evidence.

In an action upon a Bohemian oat note, where the defense was that defendant relied on a representation that the vendor was worth $100,000, and. a bond given by it to sell a portion of his produce the following year, two-annual reports of said vendor showing its assets to be worth only $10,000-were offered in evidence to prove the falsity of the representations, which were rejected. Seld, that defendant was not prejudiced by such rejection,, as the reports, if admitted, would have shown that the company was responsible for many times the amount of defendant’s note and any profits-he could have made out of the transaction.

Motion of the defendant for a new trial upon a verdict directed, at circuit for the plaintiff, the exceptions directed to be heard at-the general term in the first instance.

Charles A. Widener, for pl’ff; Thomas & Desmond, for def’t.

This is an action to recover upon a promissory note-of $300, given for twenty bushels of Bohemian oats. The defense was that the note was obtained by the fraudulent representation that the oat company, with which the contract was made, was-worth $100,000, and that the defendant relied upon a bond given to him by the company, agreeing to sell for him the following year twice the amount of oats, out of which the defendant was to realize $400. The company failed to perform its contract. To prove the

p. 301

falsity of the representations the defendant offered in evidence two-annual reports made by the company and filed in the office of the-secretary of state of the. state of Michigan, showing that the company’s assets amounted only to $10,000.

One of these reports bore date and was filed the year the note: was given. The other bore date and was filed the following year.

The reports were properly certified.

• Under the plaintiff’s objection they were excluded as immaterial, incompetent and hearsay.

While the correctness of this ruling may be doubted, we don’t-see that the defendant was injured thereby.

The reports if admitted would have shown the company to have-been worth at least $10,000.

The amount the plaintiff could realize out of the transaction, in any event, was $400, the amount of the note and $100 profit.

Had the reports been admitted in evidence, they would have shown that the company was responsible for many times that, amount.

The exceptions should be overruled and the defendant’s motion ■ for a new trial denied, and the plaintiff should have judgment for the amount of the note, interest and costs.

Dwight, P. J., and Macomber, J., concur.