Dyer v. Tilton

By the Court. This is a question, no doubt, of great practical importance, — surely so, if the action were to be adopted. For it would, in effect, open the field to subject almost every debtor, who failed to pay his debt, to an action of deceit and a close jail execution. And the temptation, which the allowing such a remedy would afford to disappointed creditors to convert all matters of contract into torts for the purpose of obtaining more effectual redress, would and we think ought to induce us to proceed with extreme caution. The consideration, too, that no precedent for any such case can be found, induces us to feel, that it would not be prudent for the first time now to give such a remedy. It is no doubt well settled, that, if one obtain possession of goods under color- of sale, by fraud, the vendor may elect to avoid the sale and recover his goods; yet that is as far as the cases have yet gone, and we áre not prepared to be the first to advance. Although the principles laid down in Pasley v. Freeman do in some sense seem, in general terms, to include a case like the present, yet in fact we know they have never been so understood. For if they had, such actions must have been frequent. And there is an essential difference in the character of the fraud implied in the two cases. [318] We do not rely upon a person’s representations in regard to himself, especially as to his pecuniary credit, as we do upon those of third persons. It is a subject, upon which men judge very poorly,— upon none more so, perhaps; and it is not ordinarily considered, that one is bound to the same fullness, in discovering his last resources, that he is upon other subjects. The testimony in this case will illustrate very fairly the grounds, upon which such actions are-likely to be maintained, if they are allowed. The defendant was never inquired of as to his means of payment, and, if he had been, very likely he would not have told even a point blank lie. The judgment, too, it seems to us, has effectually merged whatever cause of action the plaintiff had. . The case labors under some extraneous disadvantages, beyond what attaches to its inherent character. 1. It is altogether novel in its impression. This of itself, when the state of facts has always been familiar, is a serious obstacle. But this may be, to some extent, explained by the consideration, that until very recently, and now, even, in most of the states, a judgment in contract is as available as one in tort. 2. The testimony in this ease shows nothing more-than the ordinary evasions, to which men always do and may be expected to resort, when reluctant to disclose the state of their property; and the plaintiff must have been aman accustomed chiefly to old fashioned honesty, to have been misled by it. 3. The plaintiff here made his election to treat the matter as a contract, and actually took judgment in that form, which, in every view of the case, must be esteemed a merger of the cause of action, and, as such, not necessary to be pleaded specially as an estoppel; but, having absorbed the cause of action, it is but an equitable defence, and might well be given iri evidence under the general issue, in assumpsit. -It is impossible to say, that, when one has an election of remedies for the same cause, and takes judgment in one form, he can then pursue the other against the same person, and thus have two judgments, at the same time, for the same cause of action, against the same person. 4. The small amount involved in the suit, and the serious consequences, which must ensue from establishing such a new remedy, lay the case under very serious disadvantages. If it were not for these considerations, we might be inclined to think, that the general [319] principles, upon which such a remedy is asked, have been substantially recognized, in other cases. But as the plaintiff did prove his declaration, and the defendant thought proper to plead the general issue, instead of demurring, we ought not, we think, to deprive the plaintiff of the henefit of his verdict, — which was correct, we think, upon the issue joined. But as the declaration was insufficient to found any judgment upon, the judgment of the county court is reversed and judgment arrested.