Hertz v. Kaufman

Mr. Justice Gary. This action was by the appellant, upon a replevin bond executed to him by the appellee, as surety for the plaintiff in a replevin suit by one Louis Schwartz as plaintiff, and against Canute Matson and others as defendants. Matson, as sheriff, had levied an execution upon goods bought by the firm of A. Diamond & Son from Schwartz, and Schwartz replevied them. The appellant was coroner and executed the replevin writ. The replevin suit'was dismissed for want of prosecution, and in this suit for the value of the goods replevied, which had not been returned upon the retorno hdbendo, the defense was that they had been obtained by Diamond & Son from Schwartz, upon false representations, and with the intention to not pay for them. This defense was successful, and the appellant recovered a nominal judgment for the penalty of the bond, to be discharged upon the payment of one cent damages. This accords with Chinn v. McCoy, 19 Ill. 604, and many other cases. The goods in controversy were bought on credit in the fall of 1889, and shipped in the following January. The Diamonds were closed up by the sheriff March 28, 1890, upon executions issued on judgments by confession to the amount of $4,500 principal, upon judgment notes to two uncles and an aunt of one of the Diamonds. The record seems to indicate that the business has been resumed in the name of the wife of one of them. Upon such facts, a jury may be expected to find fraud if there be any evidence tending to show it. The trial was a fair one, no error of law in the instructions, and the evidence properly took a wide range as to the representations by the Diamonds, not only to Schwartz, but to other persons of whom they bought goods. Castle v. Bullard, 23 How. (U. S.) 112; McCasker v. Enright, 24 At. Rep. 249. to go through the evidence and instructions would occupy too much space. The judgment is affirmed. Judgment affirmed.