Von Bruck v. Peyser — 25 N.Y. Super. Ct. 468

Majority

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Moritz Von Bruck et al. plaintiffs and appellants, vs. Frederick M. Peyser, defendant and respondent.

Headnote

1. In an action for falsely, and fraudulently inducing the plaintiffs to sell goods to a third person, on credit, the defendant’s liability depends upon the falsity of his statements with his knowledge thereof, and their effect upon the business dealings between the plaintiffs and such third person. These being questions of fact, proper for the consideration of the jury, unless there has been too great a lapSfe of time between the making of the representations and the giving of the credit, it is error to take those questions from the consideration of the jury, and dismiss the complaint, upon the trial.

2. Although there must be by law some limit to the period of time during which it is fair to presume and allow a party to claim, that the influence of the false representations continued to operate, like all questions of a similar nature, of mixed law and fact, the length of such time must depend upon the facts and circumstances of each case. In all such cases, it is for the jury, and not the court, to determine whether the plaintiff continued to be operated upon by the representations; and it would be proper to instruct the jury that they are to ascertain, from the evidence, and determine, such fact. (Robertson, Ch. J. dissented.)

3. Held, in this case, that the question whether the plaintiffs were influenced in making sales to a third person in 1860, by representations made by the defendant two years and four months previously, as to his responsibility, should have gone to the jury; it appearing that the defendant, after the making of the original representations, had, in July, 1860, again intervened, acting as the agent of such third person; but personally promising the punctual payment by the latter of a new indebtedness, then incurred at the end of a proposed credit.

'4.. One who induces another to give credit to a third party, by a fraudulent suppression or concealment of the latter’s .embarrassments and indebtedness, ) at the time when he is bound to disclose them, is liable to the creditor, in an i action for damages for the loss thus occasioned.

5. In March, 1858, the defendant, by letter addressed to the plaintiffs, announced a transfer by the former, of his business, with debits and credits, to a third

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person, who would “ continue the same with undiminished means,” under the firm of E. K. successor to the defendant. The letter requested the plaintiffs to “ extend the same confidence to his (the defendant’s) successor they had hitherto reposed in him.” The defendant subsequently stated to one of the plaintiffs that he, being a man of property, had given up his business to such third person; that “ in fact the concern would remain altogether the same, with an alteration in the firm.” At the time of making these representations such third person was indebted to the defendant for the whole purchase money of his stock of goods, and $2000 for borroxved money; and had no other means than such goods and .borrowed money. He subsequently gave the defendant a chattel mortgage on all his stock in trade, to secure the payment of $28,000. The representations made by the defendant induced the plaintiffs to sell goods to such third person on credit, the price of which they were unable to collect, of him. Seld that the defendant was liable to the plaintiffs for the loss they had suffered in consequence of the making of the representations in question.

(Before Robertson, Ch. J., and Monell and Garvin, JJ.)

Heard October 6, 1864;

decided December 16, 1864.

The action was to recover damages as well for a false and fraudulent representation made to the plaintiffs by the defendant, as for the fraudulent concealment from the plaintiffs of facts within the defendant’s knowledge.

On the trial, before a justice of this court and a jury, it was proved that on the 1st of February, 1858, the defendant wrote and transmitted to the plaintiffs a letter of which the following is a copy:

“ New York, February 1, 1858.

Messrs H. Von Brack’s Sons.

I hereby respectfully advise you that I have this day made over my business, with debits and credits, to my brother-in-law, and assistant for many years, Mr. Emil Kanter, who will continue the same with undiminished means, under the firm of ‘ Emil Kanter, successor to Fred. M. Peyser.' In giving you my best thanks for the confidence reposed in me hitherto, I beg that you will extend the same also to my successor, and I am, Respectfully and humbly, F. M. Peyser.”

One of the plaintiffs testified that after the receipt of this letter, the defendant came to Orefeldt, in Prussia, the plaintiffs’ residence, on the 3d of June, 1858, and repeated the statement contained in the letter, and told the plaintiffs that

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he himself being a man.of property and purposing to live in Europe thenceforth, had given up his business to his brother-in-law, Kanter ; that in fact the concern would remain altogether the same, with an alteration of the firm ; that these representations had the greatest influence on their business dealings with Kanter, to whom being totally unknown to' them, they should else never have allowed a single cent of credit.' He further testified that they (the plaintiffs) perfectly relied upon the integrity of the defendant’s statements and felt safe in consequence. Upon his cross-examination, the same witness testified that at the interview with the defendant on June 3d, 1858, they wanted him to interpret the meaning of the expression in his letter, “ undiminished means,” (literally unweakened means.) In answer to which the defendant told them that he himself being a man of property and purposing to live in Europe henceforth, had given up his business to his brother-in-law ; that in fact the concern would remain altogether the same with an alteration of the firm. It was admitted in the answer that for a long time prior to February 1858, the defendant had been engaged in a lucrative business in New York, and had realized a fortune ; and had theretofore been accustomed to purchase goods of the plaintiffs on. credit, and had always paid for the same.

■ The answer further admitted that at the time of the" purchase Kanter had no property or means, except that the defendant at tliat time gave him a large amount of stock-and fixtures, good will and lease of store, of the value of $18,000 or $20,000, which then became the property and means.of Kanter. It was further admitted that, except as aforesaid, Kanter purchased the business upon credit, and that the defendant knew the facts above set forth as to property, means and credit. The defendant further admitted that, for the purchase, Kanter was indebted to him in the sum of $7000, and-that he loaned him in addition '$2000 more to carry on the business ; and that at the time of the purchase Kanter gave him a chattel mortgage upon the goods which he had on hand.

The first purchase made by Kanter of the plaintiffs was July

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10, 1858, and the last October 3d, 1860. All the purchases made in 1858 and 1859 were paid. In 1860, the purchases amount to 11,982 francs, which were not paid for. It was proved that the goods sent to Mr. Kanter were personally selected for him by the defendant from the plaintiffs’ stock in their warehouse, or were ordered by the defendant to be manufactured for and sent to Mr. Kanter on credit.

The plaintiffs gave in evidence two other letters, as follows:

“ To H. Yon Bruck Sons,

Kranftle, near Hamburgh, June 29, 1860.

I beg you, after receiving this letter, to send me samples of velvet trimmings of all sorts of breadth, as I am inclined to give you an order for it, if the samples and prices are suitable . Yours, &c. Feed. M. Peyseb.”

“Messrs. H. Yon Bruck Sons,

Kranftle, near Hamburgh, 16th July, I860..

I hereby take the liberty to give you for Mr. Emil Kanter the following orders, and you will see to have good fabrics and fine selection of colors. I also beg you to let the goods be cut per 11 metre. As regards the conditions, you will receive payment from Emil Kanter in1 six months from the date of the invoice by three months drafts on Hamburgh, punctually. I hope you will be satisfied by it, as Mr. Kanter has received the same conditions from all his other European friends.

Yours, &c. . Feed. M. Peyseb.”

At the close of the plaintiffs’ evidence, upon the defendant’s motion, the justice dismissed the complaint,- and the plaintiffs excepted.

Judgment was thereupon entered and the plaintiffs appealed.

C. Wehle and T. Darlington, for the appellants.

1. The plaintiffs having been induced by the false representations of the defendant,, to sell to Emil Kanter on credit, and having thereby sustained the loss of the goods in question, are entitled to recover against the defendant the damages sustained.

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by them. /This being an action for deceit, the two elements necessary to constitute the same, are : Deceit on the part of the defendant, and damage resulting therefrom to the plaintiffs. ( White v. Merritt, 7 N. Y. Rep. 352 .) And the action will lie, whenever there has been the assertion of a falsehood as to a fact with a fraudulent design, when positive injury arises from such assertion. (Bacon Abr. title Action on the case, F. Sharp v. The Mayor, 25 How. Pr. 389 . Thomas v. Beebe, 25 N. Y. Rep. 244 . Benton v. Pratt, 2 Wend. 385 .) And the fact that the defendant, at the time of making the false representations, knew them to be false, is evidence of his fraudulent intent. (Addington v. Allen, 11 Wend. 374 .) But. it is not necessary that actions of this kind should be based upon the actual assertion of a falsehood ; the mere concealment of the truth, if done with the intent to deceive or defraud, renders the defendant liable. (Williams v. Wood, 14 Wend. 126 . Allen v. Addington, 7 Wend, 9 . And 11 id. 374.) And concealing the truth is not only evidence of falsehood, but also of fraudulent intent. (Same cases.) Nor is it necessary to show in this action that the defendant reaped any advantage from his false representations ; damage to the plaintiffs as the result of false representations is sufficient, although without benefit to the defendant. ( White v. Merritt, 7 N. Y. Rep. 352 .) We here invite a comparison between the letters in these cases and the one on which this action is based.

In summing ’ up this point, we would say: There having been established by proof without contradiction, and beyond the possibility of any doubt: (1.) The defendant’s representation as to Kanter’s solvency ; and as to the sale of the business lo Kan ter. (2.) The falsity of these representations. (3.) The defendant’s knowledge of the falsity of these representations at the time of making them. (4.) The defendant’s fraudulent suppression of the facts that Kan ter was indebted to him in a large amount, and that he held a chattel mortgage on the very business which he pretended to have sold to Kanter absolutely. (5.) The plaintiff’s reliance on said representa

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tions; and (6.) The plaintiff’s loss-by means of said representations. Judgment ought to have been ordered for the plaintiff for the amount of his loss.

II. The fact that Kanter paid one part of the debt which he was enabled to contract by means of the defendant’s false representations does not release the defendant from his liability for the balance. (Williams v. Wood, 14 Wend. 126 .)

III. Even if the defendant had not been aware of the falsity of his representations, he would still be liable ; for he certainly made them without knowing them to be true, and- caused in-x-jury thereby. (Bennett v. Judson, 21 N. Y. Rep. 238 . Sharp v. The Mayor, 25 How. 389 .)

IV. The evidence shows that Kanter was insolvent at the time when he was represented as worthy of credit by the defendant ; bub it is immaterial whether he was or was not; the defendant is liable on the grounds that his representations were false ; that he fraudulently concealed material facts, and that injury was thereby caused to the plaintiff. (See.cases in Wend. above cited.)

W. H. Peckham, for the respondent.

The court did not err in dismissing the complaint. The only evidence of representations made by the defendant is the letter Exhibit No. 1, and the testimony of the witness Seyffardt, that the defendant “repeated that statement.” The only material clause in the letter is the statement that Kanter will continue the business “ with undiminished means.” . There is no evidence in the case that this statement was false. The phrase “undiminished means,” or literally “unweakened means,” does not mean that Kanter was a man of equal pecuniary means to the defendant; nor does it state, or mean to state, any thing about the amount of property owned by, or the pecuniary responsibility of Kanter. It means simply' to state that the amount of capital invested and employed in the business by the defendant up to the first of February, 1858, should still remain in it after that date. The business should not be, and was not crippled by any withdrawing of capital. In com

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mercial business a certain amount of capital is needed. Now, whether the person carrying on the business is the owner or the borrower of the capital, is immaterial, so far as the business is concerned. The point is, that that amount of capital shall be available for the purposes of transacting the business. And that the plaintiffs understood the phrase in this light is apparent from the testimony. They understood and believed that the defendant Peyser was still interested in the success of the business, because they understood he had “ left his money in the concern of Kanter.”

Now the plaintiffs could not have understood that the defendant Peyser had left his money in the business as a silent or special partner, or so as to entitle him to a share of profits, because the letter expressly says that he, Peyser, has made over his business with debits and credits to Kanter, and because the plaintiff himself speaks of the business as the “ concern of Kanter,” and because if they, the plaintiffs, had so understood it, or if the defendant had so represented it, the plaintiffs would have brought their action on contract against the defendant as a partner of Kanter. If the plaintiff’s then did not understand the defendant to have left his money in the concern, so as to entitle him to profits, they necessarily must have understood that he left it in as a loan to Kan ter. From this they must have necessarily inferred that Kanter was indebted to the defendant in at least the amount that the defendant left capital in the concern. These inferences are irresistible from the letter and the testimony. And from the answer to the 7th interrogatory of the witness Yon Brack, it is apparent that the witness was under the impression that Kanter’s whole capital was the amount loaned or “left” him by his brother-in-law, the defendant Peyser.

These considerations go to show two things : 1st. That we-are correct in our construction of the term “unweakened means.” 2d. That it is at least the construction given to that term by the plaintiffs, and, therefore, unless false in that respect, the plaintiffs have not been deceived or defrauded. That it is false in that respect there .is no pretense. There is no

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evidence as to the amount of capital, or “means” used by Peyser in his business, nor is there any evidence that the capital or “means ” used by Kanter were less.

There being then no evidence impugning the strict truth of the terms of the representation, we submit that the inference that by that letter the defendant Peyser “intended to make his connections sure of Emil Kanter’s solvency,” is entirely unwarranted. The letter would be quite as strong in that .way, if it did not contain the words “ undiminished means.” Those words, as we have seen, and as the plaintiffs also understood them, had no reference, to the comparative wealth or means of Kanter and Peyser, but simply to the amount of means that should thereafter be disposable for the business. To hold this letter to be a representation of the solvency of Kanter would be to hold that every letter announcing a sale, and in the formal and customary language requesting a continuance of favors to a successor, would be a representation of the successor’s solvency. There are no cases so holding. In Upton v. Vail, ( 6 John. 181 ,) there was a direct statement of the solvency, and good credit of the clefaulting party. In Williams v. Wood, ( 14 Wend. 126 ,) there were direct representations of character, &c. shown to be false. In Allen v. Addington, (7 id. 9 ; 11 id. 374,) there were direct actually fraudulent acts and intention on the part of the defendant, of which the defendant himself reaped the benefit. In Zabriskie v. Smith, ( 13 N. Y. Rep. 322 ,) solvency was directly alleged.

But even were the letter construed as a representation of solvency, there is no evidence whatever of its falsity. There is no evidence that at the time of the purchase Kanter owed any thing. Now the owing of debts is a necessary condition of insolvency, and when a solvent merchant purchases a stock of-goods at a fair price and promises to pay for it, that purchase cannot make him insolvent. True he owes for the goods,'but he has the goods to respond to the indebtedness. The purchasing of a stock of goods “ entirely on credit” is in no way blameable, unless at the time of or before the purchase the purchaser owes what he cannot pay. Therefore, even were the.

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letter, construed to be a representation of solvency, it was not untrue.

Again: the case at bar differs from all .the cases reported, in the facts, that at the time of the representation, Kanter was not at all embarrassed ; that the defendant was, up to the time of the sale, not the creditor of Kanter, and that the defendant himself, at the time of writing the letter to the plaintiffs, made the sale to Kanter, and taking no security therefor—the chattel mortgage to the defendant not being taken till 18th May, 1861, more than one month after the last invoice sold by the plaintiff's to Kanter became due. ■

There is no evidence of any intent to defraud on the part of the defendant. Such an intent is necessary to sustain the action. (Zabriskie v. Smith, 13 N. Y. Rep. 322 .) The defendant certainly, on the broadest construction of his letter, recommended others to do no more than he himself did. In fact the case affirmatively negatives all intent to defraud.

The letter itself, so far as it means any thing, is rather an opinion or promise than a representation. The phrase is, “ Who will continue the same with undiminished means i. e. the writer thinks or promises that the means will not be diminished. The expression, in terms as well as sense, refers only to the future. It is unnecessary to cite authorities to show that an opinion or promise will not support an action for false representations. The representation must be of an existing fact.

The whole case clearly shows that the plaintiffs have not been deceived. They gave credit to Kanter, not on the ground of any special statement of Peyser, but because they believed that P.ey ser had confidence in him, and “ left his money in the concern.” In other words, they did as Peyser did ; they lost not on account of any transactions existing at the time of the writing of the letter ; but so far as the case shows, from subsequent difficulties, and the only reason why they lost rather than Peyser is, because Peyser showed the greater vigilance in obtaining a mortgage, which mortgage was given more than forty days after the maturing of their last invoice..

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The sales were too long after the writing of the letter to have heen influenced by it. True, in Zabriskie v. Smith, that was held a question for the jury ; but that was a case of but a few months ; this is a case of more than two years. No jury would be warranted in connecting the two, and if they did their verdict would be set aside.

By the Court,

The representation contained in the defendant’s letter of the 1st of February, 1858, that Kanter, to whom he had sold and transferred his business, would continue it with “undiminished means,” was a representation capable of being interpreted into meaning that the pecuniary means and facilities possessed by Kanter were equal to those possessed by the defendant, and that such means and facilities would be employed by Kanter in conducting his business as the defendant’s successor. The defendant, for many years, had been engaged in the business to which Kanter succeeded, and from which he had acquired large wealth. His dealings with the plaintiffs had extended through a number of previous years, and they knew him to be a man of “ means,” and worthy of credit; and they believed, not only from their own construction of the letter, with their previous knowledge of the defendant’s circumstances, but from his subsequent interpretation of the significance of the words “undiminished means,” that Kanter was equally worthy of credit. In the sales made to Kanter, the plain tiffs relied upon the integrity of the defendant’s statements, and as one of the plaintiffs testifies, his representations had the greatest influence upon their business dealings with Kanter, to whom, being totally unknown, they should else never have given any credit.

There was sufficient evidence that the representations were made, and that they were relied upon by the plaintiffs in their subsequent dealings with Kanter. It hence became a question for the jury to determine, whether the representations were capable of the interpretation placed upon them by the plaintiffs. The action was in tort for a false and fraudulent representation, which induced the plaintiffs to sell their goods to

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Kan ter on credit. The defendant’s liability depended upon the falsity of his- statements, and his knowledge thereof, and their effect upon the business dealings of the plaintiffs with Kan ter. These were all questions of fact, proper for the consideration of a jury ; and unless the length of time intervening, between the receipt of the defendant’s letter of February, 1858, and the sales in the summer, of 1860, in judgment of law, operated to prevent any supposed influence, which at an earlier period did operate upon the minds and govern the actions of the plaintiffs, then, I think, it was error to tal?e those questions from the jury.

It may be that the law will not presume, and will not allow a party to claim, that representations which are believed and acted on to-day, have a continuing influence for all time. There probably must be some limit; but it is difficult, if not impossible, to say where the period should be placed. Like all questions of a similar nature, the extent of time to which it is fair to presume, or to permit a party to claim, that the influences continue their effect, must depend upon, the facts and circumstances of each case, and therefore no general rule can be adopted. In all such cases, it is for the jury, and not the court, to determine whether the .parties continued to be operated upon by the representations previously made, and it would be proper to instruct the jury that they were to ascertain from the evidence, and determine such fact. The only case that I have been able to find, in which this precise question has been discussed is Zabriskie v. Smith, ( 13 N. Y. Rep. 322 .) There the representation relied on was made some months before the last sale, and the court say it is a question for the jury, whether the sale was influenced by representations made some months previously. In short, that it was not a question of law, but of fact. I am, therefore, of opinion that the question, whether the plaintiffs were influenced in the sales made in the summer of 1860, by representations made in 1858, should have-gone to the jury.

There is another view of this case, presented by the pleadings and proofs, which I will briefly notice.

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The action, in part, is founded on a fraudulent suppression of facts by the defendant, and there was some evidence to support that branch of the- case. K,anter had no means;'had purchased the business wholly on credit, and was largely indebted to the defendant therefor. Those facts were known to, and suppressed by, the defendant. In all the purchases made of the plaintiffs, he acted as the agent and friend of Kanter. He liad frequent personal interviews and written correspondence with the plaintiffs, on Kanter’s behalf. As late as J une 29 and July 16, 1860, he gave written orders for goods to be sent to Kanter in which he gave assurances that the bills would be punctually paid. At no time did he disclose to the plaintiffs the facts, of the transfer of his business to Kanter, and Kanter’s large indebtedness to him, for which he held a chattel mortgage upon all of Kanter’s stock in trade, given, as jt is fair to infer from the evidence, at or shortly after the sale. By the dismissal of the ¿omplaint, this branch of the case was also taken from the jury. It is quite clear, I think, that if the defendant, knowing the facts attending the sale to Kanter, and his circumstances, did, by his representations or acts, induce the plaintiffs to give Kanter credit, suppressing such facts, he would be liable in this action.

Upon the whole, I am of opinion that both the questions should have gone to the jury, and that it was error to dismiss the complaint.

Judgment should be reversed, and a new trial ordered, with costs to abide the event.

Robertson, Ch. J. The cause of action in this case consists of a deceit practised by the defendant on the plaintiffs, in the year 1858, by means of two knowingly false representations made by the former to the latter of the means and resources of one Emil Kanter, on the faith of which the latter sold to "him merchandise amounting in value to nearly $2800, on four occasions, between the end of July a-nd the beginning of October, 1860. The fraudulent concealment by the plaintiff of Kanter’s embarrassments and indebtedness, at the time of such repre

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sentation set out in the complaint, not being alleged to have been made for -any purpose of deceit, or to have had any connection with the sale, may be disregarded as being any part of the cause of action.

The first of such representations was by letter, written in German, received by the plaintiffs in March, 1858. It announced a transfer, by the defendant, of “ Ms business with debits and credits” to Kanter, who was his brother-in-law, and had previously been his assistant for many years, who would “ continue the same with, (what is translated,) undiminished means,” under the firm of Emil Kanter, successor to the defendant. The latter requests the plaintiffs to “ extend the same confidence to his successor” they had hitherto reposed in him. In the beginning of June following, one of the plaintiffs, in an interview with the defendant, “ wanted him to interpret the meaning of the expression of (such) his letter “ undiminished (or unweakened) means,” in answer to which, he said “ that he himself being a man of property and purposing to live in Europe thenceforth, had given up his business to his brother-in-law ; that in fact, the concern would remain altogether the same, with an alteration in the firm.” At the time of making such representations, Kanter was indebted to the defendant for the whole purchase .money of the greater part of his stock of goods bought on credit, and two thousand dollars for a loan of money, having no other means but such goods’ and borrowed money. In July, 1858, the plaintiffs sold Kanter considerable merchandise at six months credit, and also on six other occasions, between that and June, 1859; all of which were paid for by the middle of March, 1860. In the year 1860, they again sold him, in like manner, merchandise, about' the end of July. After receiving a letter from the defendant, dated in the middle of that month (July,) wherein he ordered certain goods for Kanter, and stated, “ as regards the condition, you will receive payments from Emil Kanter, in six months from the date of the invoice, by three months’ drafts on Hamburg, punctually. I hope you will be satisfied by it, as Mr. Kanter has received the same conditions from all his other

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European friends.” The plaintiffs also sold to Kanter other merchandise, on three occasions, in 1860, before the middle of October, but have received no payment for .any goods sold in that year. They received a letter in May, 1861, dated on the eighth of that month, from the defendant, in answer to one addressed by them to Kanter, demanding payment, in which the defendant stated that Kanter would be able to pay their debt in full, if they allowed him another year’s credit. On the eighteenth of the sanie month, the defendant took from Kanter a chattel mortgage on all his stock in trade, to secure the payment of nearly $2800, claimed to be the amount due to the former by the latter, for the purchase of his stock in trade and moneys loaned. After taking possession of such goods, and selling $6500 worth of them, the residue were worth less than the residue claimed by the defendant. - Judgments having been obtained against Kanter, his assets passed into the hands of a receiver.

In cases of this kind the plaintiff is bound to establish both a design to practice a deceit and reliance upon the means used to carry on such design as an inciting cause to the credit given. There must always be a limit to the period of time before a credit given within which a false representation made could not be given in evidence to establish an intent to accomplish such deceit, or the giving of the credit on the faith of its statement. The determination of that limit, where there are no other circumstances to fix it., but tile representation and the credit cannot be .left to the varying impression of juries in each case, but must be adjusted by rules of law., It is easy to specify a limit as a maximum beyond which a representation could not be given in evidence to establish a deceit by its means. The difficulty lies in fixing the minimum, and there may always be a debatable ground in which the question becomes one of fact. In this case, the representation was made in March, 1858, and the credit given in July, 1860, being two years and four months afterwards. Had nothing else intervened, it would be difficult to say that the former was admissible in evidence as the intended cause of the latter. Without inquiry, or further

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information, the plaintiffs, as persons of ordinary prudence, could not be presumed to have believed that the circumstances of a party would necessarily remain the same all that time. In Zabriskie v. Smith, ( 13 N. Y. Rep. 322 ,) a lapse of seven months between a representation and á credit was held too short for any presumption, as matter of'law, that the former was not the cause of the latter, and the question was left to the jury. But the time in this case is quadruple of that in the case just cited, and it therefore does not furnish a decisive standard.

In this case, however, after a continuance of dealings between the plaintiffs and Kan ter, until March, 1860, the defendant, in July following,'again intervenes, acting as Kan ter’s agent, .but personally promising the punctual payment by the latter-of his new indebtedness at the end of a proposed credit-. This must be sufficient evidence of the continuation of the impression of the entire representations down to the time of such new negotiation, or its revival, to allow it and them to go to the jury, on the question whether the plaintiffs were influenced, however slightly, by them in such sale in 1860. The conduct of the defendant and his relations with Kanter, was also sufficient prima facie evidence to be passed upon by the jury of the knowledge by the former of the dealings between the latter and the plaintiffs. Knowing such dealings, he was bound also to. know that such a letter as he then wrote was likely to renew or keep alive the impression of his first representations and induce the plaintiffs to recur to them in giving a new credit. Reiterated assurances of a person’s solvency, in whatever form given, and at whatever intervals, provided the first have not entirely been forgotten, have a tendency to deepen the fading impression, and even if it-has quite been forgotten, to revive it, unless after a great lapse of time. Such was this case, and it should have been left to the jury to say whether the early representations had no influence in inducing the later sales. Such- a case is entirely different from credit given long after a representation of pecuniary ability. In sqph case the possibility of a change of -them would

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be such as to prevent any prudent man from relying upon such old representations, or trusting without a new inquiry.

It does not matter in this case that possibly the previous punctual discharge of his indebtedness by Kanter, or the new representation by the defendant of his ability to pay punctually, may have had a greater weight with them ; it would still be a question for the jury whether the influence of the first representations so continued or renewed, tended, under the circumstances, to induce the plaintiffs to sell to Kanter" in 1860 the merchandise in question.

The representation made -by the defendant in 1858 was not merely generally of Kanter’s solvency of responsibility ; it was special. Afler announcinghis purchase of the defendant’s stock, good will and debts, the defendant proceeded to say that he would carry on the business with undiminished means, and requested the plaintiffs to exhibit the same confidence in him as in himself. He was designated, too, as the plaintiff’s successor in the firm name adopted. Could stronger language be used to express the substitution of Kanter for the defendant, with the same resources ? To prevent any misapprehension, the defendant, upon being interrogated, stated in the most emphatic language, “ that there was to be no alteration except in the firm.” The possession of an old .stock of goods and of borrowed money, for which he owed, certainly did not bear out this statement. Whatever, therefore, might have been the cause of Kanter’s insolvency afterwards, and whether the defendant was instrumental in it or not, he was responsible for the truth of his representations, if he intended to, and did, procure credit for Kanter by their means.

The representations were not a letter of credit for a single transaction; they were operative as to all future purchases which they enabled Kanter to make ; and the first payments may have been made as part of a system to lull the plaintiffs into false security. And prima facie evidence of the defendant’s purpose may be found in his intermeddling in Kanter’s business, brushing up his credit in 1860, and sweeping away

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liis wliole stock of goods within a year afterwards, for part of his claim.

I concur, therefore, in thinking the case was - improperly withdrawn from the jury, and that a new trial should be had.

Cases cited

Sharp v. Mayor of New York 25 How. Pr. 389 N.Y. Sup. Ct. p. 472
Benton v. Pratt 2 Wend. 385 N.Y. Sup. Ct. p. 472
Williams v. Wood 14 Wend. 126 N.Y. Sup. Ct. p. 472, p. 473, p. 475