Soperstein v. Salsberg

Opinion by W. D. Porter, J., The refusal of the court below to allow the plaintiff to amend his statement, which is the subject of the first specification of §rror, worked no injury to the plaintiff’s cause. The only ques [291] tipn at issue was the title of the plaintiff to the goods which had been delivered to him by the sheriff. That question, it is true, turned upon the right of the plaintiff to rescind the contract under which he had sold and delivered the goods to the execution defendant, but that right was dependent upon proof of fraud in the contract of sale, and the validity of the judgment of the execution creditor was not directly the subject of inquiry. If the circumstances connected with the entry of the Salsberg judgment were such as to lead to the conclusion that it was a part of a scheme, of which the purchase by Rosenthal was one link, and of which Salsberg had knowledge, to cheat the plaintiff out of his property, then evidence of that fact was competent and material to the determination of the question of fraud in the contract of purchase. Unless the evidence to be offered was material to the determination of the issue as already framed, it was not competent for any purpose, for if the plaintiff was not entitled to rescind the contract of sale, he had no standing in this form of proceeding' to attack the judgment under which the goods had been taken in execution. We have discussed the questions raised by the second, third and fifth specifications of error in our opinion this day filed in the case of Mann v. Salsberg, but the evidence of fraud here presented is so radically different from that which we there considered, that we are constrained to hold that there was error in refusing to submit it to the jury. The salesman who took the order testified that Rosenthal represented, at the time, “ that they owed about six or eight hundred dollars on their stock, that is all.” The plaintiff testified that, the goods not having been shipped promptly, one of the purchasers came to his store to inquire the cause, and was told that the account was not considered desirable, whereupon he said, “ Well, if you want to know any more about us go down to Zeeman Bros., they have our figures; ” the plaintiff went to Zeeman Bros., and was informed by Mr. Zeeman, as to the standing of Rosenthal & Son, “ that he had their last figures or statement and he had shipped them goods on the strength of .it.” He testified further, in substance, that Mr. Zeeman said the figures showed Rosenthal & Son to be worth about $10,000. On the strength of these representations the plaintiff delivered the [292] goods. The written statement then in the hands of Mr. Zeeman represented that Rosenthal & Son had merchandise on hand to the amount of $10,000, book accounts to the amount of $2,000, fixtures worth $200 and $400 in cash, and that their total indebtedness was $800. “ Leaving balance of assets over liabilities, $11,600.” It was established beyond controversy at the trial that, at the time these representations were made, Rosenthal & Son were indebted in the sum of $12,017, and that their assets at the same time did not aggregate over $13,000. If misrepresentation is capable of proof it was proved in this case, and as to a material fact. The plaintiffs came up to the standard which the law of Pennsylvania would have required of them, and it seems to be here conceded that the law of the state of New York would have been less exacting. If these goods were delivered in New York then the law of that state must govern. When a contract is governed by the law of a sister state, that law, with regard to the subject-matter, must be proved in each particular case, and the determination of that question is dependent upon the evidence submitted; it is, therefore, manifest that such determination cannot be satisfactory evidence as to the law of such sister state when the same question arises between different parties and in another proceeding. The reports of the judicial decisions of the Supreme Court of Massachusetts, or Pennsylvania, are not evidence of the law of the state of New York. Evidence of the declarations of David Salsberg, the defendant in the issue, which indicated his knowledge of the fraudulent practices of Rosenthal & Son, and that he did not stand in the position of one who had given credit upon the faith of the apparent property of Rosenthal & Son in the goods, was clearly admissible if the law of the state of New York is as it seems by the defendant conceded to be. Any attempt to strike down the judgment of Salsberg must have been unavailing, but whether Salsberg knew, or ought to have known, that Rosenthal had acquired an appamit property in these goods by fraudulent practices was an entirely different question; if the law of New York be as stated, it was certainly material: Levy v; Cooke, 143 Pa. 607. The fourth specification is sustained. The judgment is reversed and a venire facias de novo awarded.