Wannemacher v. Davis — 32 N.Y. Super. Ct. 272

Majority

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CHARLES WANNEMACHER et al., Plaintiffs and Appellants, v. JOHN DAVIS, Defendant and Respondent.

[Decided April 30, 1870.]

Headnote

Where one with intent to deceive makes several representations, and thereby induces another, relying on the truth of all the representations, to sell him on credit, it is sufficient to sustain an order of arrest that only one of the representations was false, if it be of such a character as to have materially influenced the giving of the credit.

Before Barbour, C.J., McCunn and Jones, JJ.

Appeal from order vacating order of arrest.

The indebtedness in this case was contracted in part on July 9, 1869, and in part on July 16, 1869, and arose out of the sale and delivery to defendant of three cargoes of coal. The indebtedness matured part on August 12, 1869, and part on August 19, 1869. The sale and delivery was procured on the representations made by defendant, that he was doing a good business in the city of New York; that he had about $5,000 capital employed therein; that he owed no one for coal except "Walters Brothers &■ Co., to whom he owed about $1,300, and that he owed nothing for coal, buying for cash.

The defendant is a retail coal dealer.

On an affidavit sworn to August 19,1869, showing the above matters, and also that no part of said indebtedness had been paid, and upon an affidavit of John Cox, sworn to August, 1869, showing that on the 21st of June, 1869, defendant was indebted to the firm of Detmold & Cox for coal sold by them to him in the sum of $350, which amount had been due and owing since January, 1869, during which time various efforts had been made to collect it, but without success; that on the 10th of July, 1869, he gave his note for the indebtedness, but failed to pay it when it became due, and has only offered to pay $50 therefor, provided

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the firm of Detmold & Cox would renew it for the balance, plaintiffs procured an order of arrest against the defendant.

The defendant moved to vacate the order upon the papers on which it was granted. The motion was granted, and an order vacating it entered.

From that order the plaintiffs now appeal.

Mr. Henry Edsall for appellants.

Mr. Henry Morrison for respondent.

By the Court:

It is clearly established that defendant was indebted for coal to a party other than Walters Brothers & Co., in the sum of $350, which indebtedness, although standing since January, 1869, the creditors had been unable to collect. The representation that he owed no one but Walters Brothers & Co. was therefore false. If none of the others were false, still the falsity of this one was sufficient to sustain the order of arrest.

The plaintiffs relied not on any particular one of the representations, but on the whole taken together.

It was from the whole of them that they determined on the fitness of giving credit to the defendant, and as to whether his business and means would justify their trusting him. A capital of $5,000 is not so large but that the addition of an indebtedness of $350 to one of $1,300, especially when that additional indebtedness is due to another creditor, might well have a material bearing in the minds of the plaintiffs in determining whether the situation of the defendant justified giving him credit.

The defendant must have known of the existence of the debt and of his inability to pay it; and therefore his representation that he owed nothing except the debt he mentioned, could only have been made with the design to deceive the plaintiffs, for fear either that the knowledge of that fact would of itself deter the plaintiffs from trusting him, or else that they would make inquiries of Detmold & Co, the result of which he might rea

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sonably expect would be the annihilation of Ms hopes for a credit.

But the affidavits, standing uncontradicted, show the falsity of all the representations, except perhaps as to the amount of the indebtedness to Walters Brothers & Co.

The fact that in - one month from the time of representing . that he was doing a good business, and had a capital of $5,000, he was unable to pay the indebtedness to plaintiffs, together with the fact that long prior to the representations, to wit, in January, 1869, he was indebted in the sum of $350, which indebtedness remained uncancelled at the time of the arrest, although he had been frequently pressed to pay it, are so inconsistent with the representations that in July he had a capital of $5,000, and was domg a good business, that, being unexplained, they lead the mind to the conclusion that the representations were untrue.

Order reversed.