Keller v. . Strasburger

Earl, J. This action was brought for goods sold and delivered, the complaint containing no allegation of fraud. The defendant in his answer alleged that the goods were bought upon a credit of four months, and that the credit had not expired at the commencement of the action. Upon the trial the defendant proved his allegation as to the credit, and then the plaintiffs gave evidence, which was controverted by the defendant, tending to show that at the time of the purchase, and to induce the credit, the defendant made false representations as to his solvency. The plaintiffs also proved that before the expiration of the credit, and before the commencement of the action, the defendant gave them notice that he would not be able to pay for the goods at the expiration of the credit. The plaintiffs claim that this notice was a waiver of the credit, that it destroyed the mutuality of the contract, and that they could, in consequence thereof, at once commence this action without waiting for the expiration of the credit. This is a novel claim, unsupported by any authority. The contract was not repudiated by the defendant, and remained in force notwithstanding his declared inability to perform it on his part. The trial judge submitted the question of fraud in the purchase of the goods to the jury, properly instructing them ,as to the principles of law applicable. In the course of his charge he said: “ If those facts are true (the facts relating to the alleged fraud), and they are found so by the jury, then the law gives Mr. Keller an additional remedy against Mr. Strasburger, and that is to issue an execution against his person and to incarcerate him in prison as a punishment, to a certain extent, for the fraud he has perpetrated upon Mr. Keller; and the question for you to determine is, whether Mr. Keller is to have the right to imprison Mr. Strasburger as the result of your verdict, or he is simply to be remitted to his rights as creditor, and as such creditor procuring his judgment against the debtor and issuing his execution against his property.” *382 All that portion of the charge ending with the word “ verdict” was excepted to by plaintiffs’ counsel. In taking the exception, he stated that an order of arrest had been issued. The portion of the charge excepted to rested upon the assumption that an order of arrest had been both issued and executed, and this must have been meant by the statement, as otherwise it had no pertinency. It was not claimed that the order of arrest, although issued, had not been executed. If that had been true, the attention of the judge should have been called to it. It must, therefore, be assumed, as it was assumed by the trial judge, that an order of arrest had both been issued and executed, and that being so, the judge did not err in stating to the jury that a verdict and judgment in favor of the plaintiffs would authorize an execution against the person of the defendant. (Code, § 1487.) While a trial judge cannot ordinarily be called upon as matter of right, by either party, to instruct the jury as to the consequences which may flow from their verdict, yet he may, in his discretion, so instruct them. It is frequently important to give the jury such instruction to induce them to greater care in weighing and scrutinizing the evidence, and we cannot say that the judge erred in giving it in this case. We think no error was committed upon the trial, and that the judgment should be affirmed, with costs. All concur. Judgment affirmed.