Zabriskie v. . Smith

*329 Denio, J. The questions of law arising upon this appeal appear to be the following : 1. Whether the complaint sets forth a cause of action ; 2. Whether the evidence on the part of the plaintiffs, standing uncontradicted, made out a case suitable to be submitted to the jury, or whether, on the contrary, they ought to have been nonsuited; 3. Whether the sales of goods made by the plaintiffs to Walter H. Smith, subsequent to April, 1848, were so far out of the influence of the alleged false representation that the consideration of them should have been taken from the jury ; 4. Whether the interest of John A. C. Gray was assignable; if not, 5. Whether the action in the names of the other partners can be sustained, in consequence of the defendant having omitted to demur to the complaint,; and lastly, if the last point is determined against the defendant, whether the value of the interest of Gray ought to have been deducted from the recovery. (1.) The complaint imputes to the defendant the sending of the message with a view of inducing the plaintiffs to sell goods to Walter H, Smith; and the message imports that the defendant had examined into Smith’s affair's with sufficient attention to enable him to express the- <.pinion that he might safely be trusted. This is somewhat qualified by the promise that in case of anything adveioc happening they should be -taken care of, a promise which, it is admitted, cannot be availed of in this action ; still, with this deduction from its force, it was a representatii >n of considerable strength, that the defendant had -ascertained that-Smith was, in a business point of view, trustworthy. The second branch of the message, as set out, is equally strong; that the defendant had talked with Smith, and was satisfied he was solvent and was going on well. Such a representation, from a person entitled to confidence, would be calculated to exercise more or less influence upon the mind of a dealer. Then the breach is that Smith was in fact insolvent, and the defendant had not made any such examina *330 tion as he represented, and was unacquainted with Smith’s affairs, except to know that he was indebted $4000. It is unnecessary to remark here upon the alleged fraudulent concealment, for I am of opinion that to represent, of a man entirely insolvent, that you have examined into his affairs, and consider him solvent and worthy of credit, and that he is going on well, when all you know of his business condition is, that he owes a large sum of money, is actionable, if the representation was made from bad motives, in order to induce a credit. In Allen v. Addington (11 Wend., 374, 386), the court for the correction of errors decided that in an action of this kind the plaintiff must aver that the false representation was made with an intention to deceive and defraud him. Under our present system of pleading, I conceive that a complaint should contain the substance of a declaration under the former system. It is sufficient, however, that the requisite allegation can be fairly gathered from all the averments in the complaint, though the statement of them may be argumentative, and the complaint deficient in technical language. In this complaint the message is characterized as false and deceitful, and it is averred that by means of it the plaintiffs have been deceived and defrauded, and that the defendant wrongfully and deceitfully encouraged and persuaded the plaintiffs to sell the goods. And it is further alleged that the defendant, when he sent the message, well knew that the plaintiffs would rely upon its truth,, and that it would induce them to sell and deliver the goods to W. H. Smith, upon credit, when he was not a person to be safely trusted. This language, taken together, I think, by a reasonable intendment, makes out the allegation of bad faith and evil intention on the part of the defendant, though a concise averment in the terms mentioned in the books would have been better pleading, and more in accordance with the spirit of the Code. *331 (2.) The sending of the message and its delivery by Sayre were proved, and though it varied slightly from the statement in the complaint, the defendant did not avail himself of the variance in the manner pointed out by the Code. (Catlin v. Gunter, 1 Kern., 368.) Its terms and the circumstances under which it was sent showed clearly that the intention was to induce the plaintiffs to give credit to Smith. The defendant could have had no other motive in sending it. Now, although it was not a very strong recommendation of the responsibility of Smith, it tended to convey the opinion that he was a safe person to be trusted with a quantity of goods, and that the defendant had ascertained such to be the fact from conversation with him and an examination of his affairs. The most important circumstance respecting the solvency of a business man, is the amount of the debts which he owes. The plaintiffs proved, by the defendant’s own sworn declaration, that he had no knowledge whatever of the amount of Smith’s debts. It appeared, moreover, that Smith was at that time indebted to the defendant in a sum which, considered in reference to the extent of his business, was large. This, of course, the defendant knew, for the debt was in part owing to him, and as to the rest he was surety for its payment. Good faith required that the existence of these debts should have been communicated to the plaintiffs. It was an important qualification of the information actually conveyed by the message, and should have formed a part of it. Had the plaintiffs been informed that Smith was going on at the sufferance of the defendant, who could at any time shut up his store, it is improbable that they would have trusted him. The defendant volunteered to inform the plaintiffs as to Smith’s business condition, with a view to procure credit for him, and it was disingenuous to withhold this material circumstance. I think the case was a fit one to be passed upon by the jury, and that the nonsuit was properly denied. *332 (3.) I think, too, it was a question for the jury whether the sales made to Smith in the summer and autumn of 1848 could have been influenced by the recommendation made in April of that year. It is quite a different question from that presented in the cases referred to by the defendant’s counsel upon guaranties. (Rogers v. Warner, 8 Johns., 119; Whitney v. Groot, 24 Wend., 82.) These cases turned upon the construction of the language of a contract, and the question was whether it contemplated a single transaction or a series of transactions. In the case under consideration, the defendant is charged with infusing into the minds of the plaintiffs false views as to Smith’s business condition and circumstances ; and the question is whether, considering the defendant to be culpable, the wrong impressions thus inculcated would have been likely to operate for á period of between six and seven months. It would be manifestly unreasonable to limit the defendant’s liability strictly to the very time of making the recommendation, for it would have been as likely to operate upon the plaintiffs’ minds at any time during the same season, and within a few weeks oi months, as at the time when it was given. Whether, according to the common usage of men of business, a fresh inquiry would be likely to be made at a time not more remote than that of the last purchases in this case, presented a question for the exercise of the good sense of the jury, and I think the court was right in leaving it to them. If they had determined that the late purchases were too remote to be affected by the representation, we should have been satisfied with the finding. In short, this was not a question of law but of fact. (4.) If the interest of Mr. Gray in the cause of action was not of a nature to be transferable by assignment, the written transfer given in evidence was inoperative, and he was a necessary party to the action. We decided at the last term, in the case of McKee v. Judd (2 Kernan, 622), that a right of action for the conversion of personal chattels might be assigned, so as to vest a property in the assignee, and *333 enable him, under the provisions of the Code, to maintain the action. This was in accordance with Gillett v. Fairchild (4 Denio, 80), and Hudson v. Plets (11 Paige, 180), and I have no doubt of its correctness. But this is a different case, and depends, as we shall see, upon different principles. The maxim of the common law is, actio personalis moritur cum persona. This principle was not originally applied to causes of action arising out of the breach of a contract. These were parcel of the personal estate in respect to which the executor or administrator represents the person of the deceased, and is in law his assignee. (Raymond v. Fitch, 2 Crompt., Mees. & R., 588, 597; 1 Williams on Ex’rs., 677; Broom’s Legal Maxims, 702.) But as to this class of rights of action,' late cases have somewhat qualified the rule, and it is now well settled that an executor or administrator cannot maintain an action upon an express or implied promise to the deceased, where the damage consists entirely of the personal suffering of the deceased, whether mental or corporeal. Actions for the breach of a promise of marriage, for unskilfulness of medical practitioners contrary to their implied undertaking, the imprisonment of a party on account of the neglect of his attorney to perform his professional engagement, fall under this head, being considered virtually actions for injuries to the person. (Chamberlain v. Williamson, 2 Maule & Selw., 408.) But all actions arising ex delicto, were governed by this maxim, until the statute 3 Ed. III., ch. 7, changed the rule respecting actions of trespass de bonis asportatis, authorizing such suits to be maintained by executors where the taking was in the lifetime of their testator. Another, áct, passed in the fifteenth year, of the same reign (ch. 5), gave the like actions to administrators. These statutes have been greatly extended by an equitable construction, as will be seen by the cases collected in Williams' Treatise on Executors (vol. 1, p. 670); but I do not find that an action on the case for a deceit has ever been considered as within the purview of the statutes *334 It was not until a late period that executors or administrators were enabled to maintain an action for injuries to the real estate of the deceased. Such remedies were given by the statute 3 and 4 William IV., ch. 42. (Broom's Leg. Max., 405.) The Revised Statutes'of this state have proceeded on the assumption that by the common law, actions for a tort could not be maintained by personal representatives. Hence we find it enacted that “ executors and administrators shall have actions of trespass against any person who shall have wasted, destroyed', taken or earned away, or converted to his own use the goods of their testator or intestate in his lifetime. They may also maintain actions for trespass committed on the real estate of the deceased in his lifetime.” (2 R. S., 114, § 4.) If it be true that the executors or administrators are, as was said by Lord Abinger in Raymond v. Fitch, the testator’s assignees, it is fair to assume that they take whatever of a personal nature the deceased had which was capable of assignment, and that the power to assign and to transmit to persona] representatives are convertible propositions. Upon the reason of the thing this should be so, for no good title can be passed to an assignee of an interest which dies with the person of the assignor. This distinction has been made the foundation of several judicial decisions. Cowen, J., said, in The People v. The Tioga Cr P., “ I have never been able to find any case in England which, in respect to personal estate, has given the assignee a greater right than would go to an executor, none which vests in him a right of action for a personal tort, or any other mere tort.” (19 Wend,, 76.) In Somner v. Wilt (4 Serg. & Rawle, 19, 28), the action was fora malicious abuse of legal process against property. The plaintiff before bringing the action had made an assignment under an insolvent act of all his estate, credits and effects. It was objected that he had parted with his right of action. The court, however, held that it was not the subject of an assignment undei the insol *335 vent act. They say that the cause of action was neither estate, credits or effects; that it was a personal action, that would die with the person. They add, “ if it passed by the assignment his death would not affect it.” The same doctrine was laid down in North v. Turner (9 Serg. & R., 244). It was an action of trespass de bonis, and the question was whether an assignment by one of the plaintiffs pendente lite, accompanied by the payment of the defendant’s costs, qualified him to be a witness—the courts in Pennsylvania allowing parties to the record, when not interested, to be witnesses. The court held that the assignment was effectual to divest him of interest; and they say that the rule, holding the right of action for personal injuries not to be assignable, “ does not hold with respect to a trespass committed against the party’s goods, the remedy for which survives to his personal representatives, by the statute 4 Ed. III., ch. 7, which clearly shows that such a cause of action is separable from the person of the owner.” And Story, J., in Comegys v. Vasse (1 Pet., 213), remarked that it might in general be assumed “ that mere personal torts, which die with the party and do not survive to his personal representatives, are not capable of passing by assignment.” These cases certainly furnish a respectable amount of judicial authority, and I think warrant us in holding, that any interest to which the personal representatives of a deceased party would not succeed, is not the subject of assignment inter vivos. The subject is one of great practical importance, since the Code of Procedure has authorized actions by assignees of a chose in action; and I am glad to find a rule laid down, of easy application, which will furnish a ready solution of many questions upon which the courts of original jurisdiction have differed in opinion. I may mention an additional case from the supreme court of Pennsylvania, upon the general question. O'Donnell v. Seybert (13 Serg. R., 54, 56) was an action for an excessive distress. It was held that the cause of action could not be assigned. *336 “ It is not,” say the court, “ an action of contract or of property” The amendment made, in 1851, to the 111th section of the Code seems to have been designed to correct an erroneous construction sometimes given to the section as originally enacted, by which all causes in action w'ere held to be assignable; but I do not think the amendment bears upon the present question. , If I am right in what has been said, the instrument executed by Grray to Zabrislde did not pass any interest. (5.) Although Grray, on the assumption that he had not parted with his interest, was a necessary party to the action, the defendant might, notwithstanding, consent to waive the objection and litigate the case upon the merits. Under the former system, the defendant could not in actions ex delicto object to the non-joinder of one who ought to have been made a party plaintiff, except by plea in abatement (1 Saund., 251, 291, note (g) and note (n) ; Gilbert v. Dickerson, 7 Wend., 451); and the Code of Procedure provides that where there is a defect of parties apparent upon the face of the complaint, the defendant may demur; and that where such an objection exists, but it does not appear by the complaint, it may be taken by answer (§ 144, subd. 4, and % 147); but if no such objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same. 148.) A dilatory defence, which a plea in abatement is considered to be, is not favored; but he who is entitled to avail himself of it must interpose it promptly, according to the established forms. Here the facts were fully disclosed by the complaint, and the defendant could have demurred. The authority to object.by way of answer is, in terms, limited to cases where the fact does not appear in the prior pleading. When, therefore, the last section which I have quoted declares that if the objection is not taken by demurrer or answer it shall be considered as waived, it means that if it be not taken by demurrer where that mode is proper, or by answer in cases where *337 that is the appropriate method, it is waived. This construction will give full effect to all the language, and will, besides, compel the defendant to take his ground with the promptness inculcated by the rule of pleading to which 1 have referred. I observe that it has been determined at a special term in the 5th district that matter in abatement must be pleaded separately, prior to the putting in a plea in bar. (Gardiner v. Clark, 6 How. Pr. R., 449.) The reasoning of Mr. Justice W- F. Allen in that case commends itself to my judgment, and individually I should be ready to approve its correctness, but it is unnecessary for the court in this case to pass upon that question. The defendant must be held to have waived the objection to the non-joinder of Gray by omitting to demur. (6.) The only remaining question then arises, whether the defendant was entitled to give in evidence the nonjoinder in diminution of damages. It has been repeatedly decided that where one or more of several tenants in common sues, and the defendant neglects to avail himself of the objection by plea in abatement, he may still give it in evidence to reduce the damages. (Dockwray v. Dickenson, Skinner, 640 ; Blackborough v. Graves, 1 Mod., 102 ; Addison v. Overend, 6 Term R., 766; Sedgworth v. Overend, 7 id., 273 ; Wheelwright v. Depeyster, 1 Johns., 471; Rich v. Penfield, 1 Wand., 380, 386; Gilbert v. Dickinson, 7 Wend., 449.) These authorities are conclusive against the plaintiffs unless there is a distinction between tenants in common and joint tenants. The members of the firm were joint tenants, and not tenants in common. Partners are joint tenants of all the partnership effects during the existence of the copartnership, and even after dissolution until its affairs are wound up. (West v. Skip, 1 Ves., sen., 242; Collier on Part., § 123 ; Murray v. Mumford, 6 Cow., 441.) In the case of tenants in common, the rule allowing the interest of the party not joined to be proved in diminution of damages is put upon the ground that he may still sue for the value of his share.; *338 as was done in Sedgworth v. Overend, above referred to. But joint tenants are not owners of separate shares. Each joint owner has title to the entirety. (Co. Litt., 186 a.; 2 Bl. Com., 182.) I am, therefore, of opinion that where the defendant permits one or more of several joint tenants to sue alone in an action of tort, by not pleading the joint tenancy in abatement, that the recovery should be for the damages sustained by all the joint tenants. In the course of the trial the plaintiffs were permitted to prove, against.the defendant’s objection, that Sayre was charged by the defendant with a communication to School-craft, of the same tenor with the one which he was requested to make to the plaintiffs, and at the same time. I think this was admissible as a part of the transaction, and as tending to show the motive of the defendant. The defendant also excepted, because the judge did not respond specifically to all the propositions stated in writing by the defendant’s counsel. I do not think we ought to apply to the case of a series of propositions, in a request to charge, the rule applicable to an exception to a charge— that if any part of it is correct, the exception is unavailable for not specifying the parts intended to be objected to ; and I concede that the judge ought to respond to each proposition, provided it presents a question of law bearing upon the evidence. But in this case, where the separate propositions were very numerous, and the charge covered generally the questions of law presented, the defendant’s counsel, if he conceived that any one or more of them was not sufficiently answered, should again have called the judge’s attention to it. This the counsel did in this case as to one point, and it was fully met by the additional charge. If there was any other proposition which the judge failed to answer, it should have been mentioned. The result of these remarks is, that the judgment of the suprem 3 court should be affirmed. *339 Gardiner, G. J., Johnson, Crippen and Dean, JJ., concurred in the foregoing opinion. Hand, J., delivered an opinion in favor of reversing the judgment of the supreme court. Marvin, J., was also in favor of reversal. Judgment affirmed. 1 Footnotes [1] In the case of Jackson v. Daggett, 24 Hun 205-6, Judge Dyiuian says, that this case “ is not in harmony with the current of judicial authority. The question was examined on common-law principles and authorities, without any reference to our statutes on the subject, which are controlling. In the opinion, it is stated, the power to assign, and to transmit to personal representatives, are convertible terms; and under our statute, for wrong done to the property, rights or interests of another, for which an action might be maintained against the wrongdoer, such action may he brought by the person injured, or, after his death, by his executors or administrators, in the same manner and with the like effect in all respects as in actions founded on contract. (3 R. S., 7th ed., 2394, § 1.) The next section takes out of the operation of this statute, actions for slander, libel, assault and battery, false imprisonment, and injuries to the person. Now, it is entirely plain, that the wrong complained of in Zabriskie v. Smith, was an injury to the rights and pecuniary interests of the plaintiff’s assignor. This case was decided in 1855, and in 1859, there went to the Court of Appeals for determination, the case of Haight v. Hoyt, 19 N. Y. 464, an action against a vendor of land, for fraudulent representations as to incumbrances, which had been continued against the executor of the vendor, and the conrt there held, that the right of action survived against the personal representatives ; and the judge who prepared the opinion in Zabriskie A Smith, wrote an opinion on this case, in which he said, the cause of action was a wrong done, to the rights and interests of the plaintiff. This last decision was founded on our statute, while the other was not; and the two cases are entirely inharmonious. Besides this, the case of Zabriskie v. Smith has been criticised in Johnston v. Bennett, 5 Abb. Pr. (N. S.) 331 ; Freed v. New York Central Railroad Co., 25 How. Pr. 285 ; and Wade v. Kalbfleisch, 58 N. Y. 280.” And it was accordingly held, that a cause of action against a sheriff, for his failure to return an execution against property, within the time required by law, and for making a false return, was assignable ; and that the assignee might sue thereon in his own name. Jackson v. Daggett, ul supra.