Bowen v. Carter

Endicott, J. The first ground of demurrer, relied on in argument, is that it appears from the second amended count that the plaintiff made the contract with Sargent, and agreed to give him credit in July, but the representation's of the defendant, as to Sargent’s credit, were not made until November. It is alleged in substance that in July the plaintiff contracted with Sargent to manufacture certain goods and deliver them in November on a credit of thirty days. Before the time of delivery arrived, Sargent informed the plaintiff that he did not want the goods, and requested him not to deliver them. The plaintiff, being uncertain whether the-refusal of Sargent arose from his inability to pay for the goods, made inquiries of the defendant respecting the character, conduct and circumstances, of Sargent; the defendant replied in writing stating, among other things, that he had no reason to doubt Sargent’s responsibility, and that the rents and other payments due him from Sargent had been paid promptly; all these representations are alleged to be false and fraudulent, but the plaintiff believing them to be true was induced to deliver the goods to Sargent, and to give him the credit of thirty days after delivery. The plaintiff was under no obligation at that time to deliver the goods under his contract made in July, but could have taken advantage of Sargent’s refusal to receive them, and rescinded his contract. But, if he was induced not to do so by the false and fraudulent representation of the defendant as to the credit and responsibility of Sargent, we see no reason why he should not maintain this action. It is immaterial that the plaintiff delivered the goods under the original contract, if he was induced by the false representations not to rescind it when he could have done so properly. The second ground on which the defendant relies is, that the representations made in November were not such that the defendant can be charged by reason thereof, but were such as to put the plaintiff to further inquiry before delivering the goods. It is possible that upon a full disclosure of all the evidence, there may be a question of fact for the jury whether the plaintiff should have made further inquiry, but of that we can know nothing here. It is sufficient to say that the declaration charges that certain representations of fact were made by the defendant, [431] which are alleged to be false and fraudulent, and we cannot declare as matter of law that the plaintiff should have made fi "thei inquiry. Demurrer overruled.