Scheftel v. Hatch

Headnote

1. False representations—Evidence.

In an action for false representations made to plaintiffs salesman regarding the solvency of a firm composed of the wives of defendant and his son. and of which he was the manager, testimony of the salesman that plaintiff had for a long time been selling goods to said firm, and just before the witness left home on the trip in which the sale in question was made plaintiff told him not to sell to that concern, that they formerly paid promptly but of late were getting slower, and he didn’t think it safe to sell, while not admissible as evidence of the facts stated, is competent to show a reason why the statement was asked for and made.

2. Same.

The witness produced his order book, in which appeared a memorandum of the statement alleged to have been made, and the witness testified that he made the entry at the time of the sale. The court charged that if the jury found that the entry was made at that time it would be strong evidence in corroboration of the witness’ testimony that the statement was made to him. Held, no error.

3. Verdict—Second trial.

Where the case has been twice tried and the juries have each found for the plaintiff, the second verdict will not ordinarily he disturbed unless the circumstances are extraordinary or the verdict is clearly outrageous.

Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion.for a new trial.

The following is the opinion of the court below:

Rumsey, J. The action was brought to recover damages for false representations made by the defendant to the salesman of the plaintiff regarding the solvency of the Hatch Flexible Shoe Company, a firm of which the wife of the defendant and the wife of bis son were partners and of which the . defendant was manager and a very large creditor.

One exception only is relied upon. The salesman, Sanders, to whom the false representation in question was said'to have been made, testified that his house had been for a long time in the habit of selling goods to the Hatch Flexible Shoe Company, but that just before he left home on the trip at which the sale was made, he was instructed by his employer that he had better not sell to that concern, that they formerly paid their bills promptly but of late they were getting slower and slower and he didn't think it safe to sell. To this evidence an objection was made, and the defendant excepted to its admission. There is no doubt that as evidence of the facts stated in it the instruction was not admissible. But I thought at the trial, and still think, that it was ■competent to show a reason why the statement was asked for. ■Ordinarily, as every one knows, when one man has been dealing with another for a long time, he is satisfied to continue his dealing relying on the course of business, without bothering himself to get any statement of his debtor’s financial condition. If Sanders had said that after selling the Hatch Flexible Shoe Company goods for so long a time without question he had suddenly asked for this statement, that fact itself might have thrown doubt upon his testimony. It was material then for him to give the Teason why he asked at this time for a statement. The fact that he was warned that the firm might not now be solvent and that his ■employer so told him was a sufficient reason for his asking Mr. Hatch for their financial condition, and therefore I think it was competént.

It clearly would have been competent for Sanders to say, if such had been the fact, that he was sent by plaintiff to get the statement, and so it was, I think, for him to give the reason why he asked for it I am inclined to think, too, that the question whether the information he received at Powers’ hotel was of such a nature that he was induced by it to ask for a statement was properly answered, and that it was an error to strike out the answer..

Suppose it had been shown that Sanders had been told that the Hatch Shoe Company had that day made a general assignment ? Would not that fact have been competent to explain his reason for asking for the statement? Suppose it had appeared that the plaintiff had never done business with the Hatch Oompany ? Can anyone doubt that that fact might be shown to

explain why the statement was asked for? Within the same reasoning, and for the same reason, the testimony in question was, I still think, properly admitted. See Greenl. Ev., 100, note 2; 101.

What was said to the jury about the entry in the book of Sanders being used to corroborate his testimony was strictly correct.

When Sanders made the sale he certainly believed that the Shoe Company was solvent and able to pay, and he had not then any reason to believe that there would be any litigation over the matter. If the entry in the book, “ Statement by J. W. Hatch, 40 M, and sold him bill,’’ was then put in the book, there is hardly any escape from the conclusion that it was a true statement of what Hatch then said, because no motive can be suggested why at that time Mr. Sanders should put a false entry on that subject in his book. Therefore, the defendant sought to throw doubt on Sanders’ statement that be made the entry when he made the order.

It is quite true, as stated by counsel, and by the court in its charge, that the entry standing alone was no evidence. It derived its importance, if it had any, from the fact that it was made when Sanders said it was, ante litem motam.

The evidence of a witness may be corroborated in a good many ways. The usual sense of the word is strengthen, and in a legal sense, especially as used in the Criminal Code, evidence is said to be corroborated when it is fortified by other evidence of consistent facts, or of facts which increase the probability of the truth of the testimony in question. But in another, but still a proper sense, a witness may be said, and often is said, to be corroborated by his manner; his character; the circumstances surrounding the transaction he detailsby any such circumstances, in short, as serve to strengthen his testimony; to render it more probable ; to impress a jury with a belief in its truth. State v. Guild, 10 N. J. L., 163 . If the jury believed that the entry in question was made as Sanders said it was, it must have gone far to add probability to the testimony he gave, and certainly the defendant was not harmed by the statement of that proposition to them. It is quite clear, I think, that there was no error on the trial to the prejudice of the defendant.

It is urged that the verdict is against the weight of the evidence. I am told, and I suppose it to be conceded, that there was substantially the same evidence upon the former trial.

The jury then, as now, gave a verdict for the plaintiff, which was set aside by Judge Adams as against the weight of the evidence. After a pretty careful reading of the evidence upon the last trial, before me, I am inclined to think that the verdict is not one which I would have rendered upon the evidence. But the action is for a tort. There is so much evidence that in everytrial it should go to the jury. It has been passed upon by two juries, each of which has found for the plaintiff. The rule is thoroughly settled that under such circumstances the second verdict ill not ordinarily be disturbed.

That rule has a good ground of reason to stand upon and is-supported by much authority. Talcot v. Commercial Ins. Co., 2 Johns., 467 ; Fowler v. Ætna F. I. Co., 7 Wend., 270 ; Nichols v. Tuttle, 12 N. Y. Supp., 394 ; 35 St, Rep., 851 . It is quite true that the rule is not inflexible, but it is one that should, I think, commend itself to the court in every case which must necessarily go to the jury unless the circumstances are extraordinary, or the verdict is clearly outrageous. This case is, I think, within the' rule.

A new trial must be denied.