Morse v. Dearborn

Chapman, C. J. The plaintiffs sold the goods in question to Pelatiah B. Osgood; and the defendant claims them by virtue of an attachment made by him as a deputy sheriff, on certain writs issued against Osgood in favor of his creditors. Osgood was insolvent when he bought the goods and has gone into bankruptcy. The plaintiffs bring this action to recover the goods, on the ground that Osgood induced them to make the sale by means of certain false and fraudulent representations. The plaintiffs requested the presiding judge to give certain instructions to the jury, which lie declined to give; and the exceptions are taken to that refusal, and not to the instructions which were actually given. On the other hand the defendant contends that, though the instructions asked were not given in the form requested, yet the law on each of the points was stated as favorably to the plaintiffs as in the requests themselves. The requests were aa follows: “ That if Osgood represented, to the plaintiffs in March 1869 that he was then worth $6000, and was coming in to buy good» [595] of them, and subsequently did buy of them the goods in question, and they were induced to sell and deliver the goods to him by this representation that he was worth $6000, and the jury believe that this representation was untrue, and that Osgood knew when he made the representation that it was untrue, the plaintiffs are entitled to a verdict; that if Osgood in March 1869 represented to the plaintiffs as of his own knowledge that he was then worth $6000, and was coming in to buy goods of them, and did subsequently buy of them the goods in question, and the plaintiffs were induced to sell and deliver to him the goods by this representa tian that he was worth $6000, and the jury believe that this representation was untrue, the plaintiffs are entitled to recover, although Osgood did not know whether the representation was true or false; and that if Osgood represented to the plaintiffs in March 1869, that he was worth $6000, and was coming in to buy goods of them, and did subsequently buy of them the goods in question, and the plaintiffs were induced to sell and deliver the goods to him by this representation that he was worth $6000, and the jury believe that this representation was untrue, the plaintiffs are entitled to a verdict.” It will be noticed that all these requests relate to the representation of Osgood to the plaintiffs that he was then worth $6000 and was coming in to buy goods of them. On this point the judge said that “ the plaintiffs would have to show that Osgood knew the statement to be false, or what would be equally fraudulent in law, knew that he was affirming as to the existence of a fact, about which he was ignorant.” This was all that the plaintiffs asked on this point, but the judge went further and said : In the present case, if the plaintiffs prove the representations upon which they rely, they were all matters within his own knowledge, and therefore upon this branch of the case the question simply is, ‘ Were the representations true or were they untrue, and known to be untrue by Osgood ? ’ ” He repeats this and enlarges upon it as follows: “ The representation that he was worth $6000, in the manner and with the accompanying statement, as testified to by the plaintiff Morse, would be a representation, as of his own knowledge, that he was worth that gum.” [596] The fraudulent intent was next to be considered. He instructed the jury that this must be proved, but he explained what would constitute such intent. If the statements were false, and he intended at the time to estabEsh a Ene of credit with the plaintiffs, that would be a fraudulent intent. He also said: “ If he said he was coming in to buy goods of them, that would authorize the jury to find that he did it with the intent to estabEsh a credit with them and the intent to impose upon them; if he made a false statement, you could find from that that he did it fraudulently.” The conversation between the parties had been testified to by Morse and by Osgood, and in referring to their testimony the judge further said: “ The circumstances, as detailed by the plaintiffs, are sufficient to warrant the jury in drawing the inference,” namely, the inference of an intent to defraud; “ as testified to by the defendant, they would not be.” It is not necessary to recapitulate the instructions given, in case the jury should beEeve the statement of Osgood, as they are not excepted to. The instructions given that if the plaintiffs prove the representations upon which they rely, "they were all matters within Osgood’s own knowledge; that the statement as testified to by Morse would be a representation by Osgood that he was worth the sum named ; that if the statements were made with intent to obtain the goods they were fraudulent; that if he made a false statement the jury would be authorized to find he made it fraudulently, sufficiently meet all the suggestions and authorities in the plaintiffs’ brief on those points. It is not necessary to discuss further the several criticisms of the charge to the jury contained in the plaintiffs’ brief, for the points already discussed sufficiently cover the case; and the instructions are sufficiently favorable to the plaintiffs. Nor is it necessary to discuss the points in which the defendant contends they were too favorable to the plaintiffs. The verdict for the defendant supersedes those questions. Exceptions overruled.