Bradley Fertilizer Co. v. Fuller

The opinion of the court was delivered by Royce, Ch. J. The plaintiff offered to show that when [317] Hosea Welch, 2d, accompanied and assisted by Hosea Welch, Jr., was in Boston early in October, 1882, purchasing goods, the latter made false representations in regard to the financial standing and condition of Hosea Welch,'2d, in the presence of said Welch, 2d. Goods to the amount of about $2,700 were purchased on credit at that time, and the representations were made in connection with the purchase of such goods. The phosphate replevied in this suit was ordered by Hosea Welch, 2d, October 28, 1882, at which time he was, and for some time previous had been, badly insolvent, and only sustained, financially, by credit furnished by Hosea Welch, Jr., and one Clark, who, November 1, 1882, refused longer to indorse his paper, and took possession of his entire stock, including said phosphate, under an assignment which was subsequently vacated by proceedings under the insolvent act, in which the defendant was appointed assignee. The evidence of what transpired in Boston was offered to show a fraudulent intent on the part of Hosea Welch, 2d, at that time to get goods into his possession, without the intention or expectation of paying for them, as tending to show a similar intent and purpose in contracting for the phosphate a few days later. The court, early in the trial, ruled against the admissibility of this evidence, but after-wards, on further consideration, decided to admit it. The plaintiff’s counsel made the'offer early, so that if the evidence were admitted he could procure the attendance of witnesses from Boston; and it appears that had it then been admitted he would have had ample time to get them to St. Johnsbury; but when the court finally decided to admit the evidence, it was too late for the witnesses to be summoned and get to the place of trial before its conclusion. It is now claimed that the evidence offered was not legally admissible. The title to the property replevied is in question in this suit. If Welch ordered or contracted for it with the fraudulent intent not to pay for it as agreed, the sale [318] was voidable at the election of the vendor; and he has elected to rescind it by the bringing of this suit. Benj. Sales, s. 433 et seq. It has long been the settled law that evidence of the making of other purchases or contracts shown to be tainted with such fraudulent purpose at about the same time, and under such circumstances as might fairly support the presumption that the purchase in question was made with the same purpose and intent, is admissible. Best Ev. 487, note (1); 1 Greenl. Ev. s. 53. The cases of Pierce v. Hoffman, 24 Vt. 525, and Eastman v. Premo, 49 Vt. 355, are full authority for that proposition in this State. The evidence offered was material as bearing upon the question of fraudulent intent on'the part of the purchaser affecting the transaction in issue; and from what appears in the case, it is clear that the plaintiff, without fault, has been deprived of the opportunity to use it. We cannot say with certainty that if the evidence contained in the affidavits attached to the petition for a new trial had been before the jury, the result of the trial would have been different;- but it seems highly probable that it would have been, unless that evidence were met by opposing testimony such as is not shown here. The petition for a new trial must therefore be granted. As it does not seem probable that a consideration of the other exceptions taken on the trial would be of substantial benefit at this time, or tend to a more speedy or economical disposition of the case, we do not pass upon them. . The judgment in the principal case is pro forma reversed and case remanded, and the petition for a new trial is granted, but without costs.