Lewis v. Pratt

By the Gowrt Perry, J. The supplemental affidavits of the appellants appear to have been received by the court below without objection, and as the statute authorizes the plaintiff to oppose the affidavit of the defendant used on a motion to dissolve an attachment by affidavits, or other evi [62] deuce, we shall consider the questions before us upon all the papers used upon the hearing below, without regard to the point made that the supplemental affidavits were competent only for the purpose of disproving the affidavit made by the defendant. Whatever there is in the point should have been urged against the reception of the affidavits by the court below. We do not understand the District Judge .to entertain or express any doubt as to the fact that representations of his business circumstances were made by the respondent, in May, substantially as set out in the affidavits. It appears from these affidavits, that the respondent then represented among other things, that he was out of debt. That this was not the fact, is shown by the affidavit of the respondent himself. The only serious question in this case is, whether false representations made in May, in regard to his pecuniary ability, by which the respondent effected a purchase on credit of the appellants, which purchase was subsequently paid for in full, could, without any further communication between the parties in reference to the respondent’s circumstances, be kept alive and carried along, as it were, so that the wrong impressions created could be treated as operating upon and inducing'subsequent credits in September and October following. We extract the following paragraphs from the decision of the judge below: “ The representations charged to have been made were made in May, 1864, and it appears from said affidavit, that the debt then contracted was paid, and that the goods for which this action is brought were purchased in September after, and that the plaintiffs relied upon the representations made in May previous. We are of opinion that that fact would not prove that the goods were purchased on the faith of such representations, unless so stated and agreed between the parties that on the faith of these representations all subsequent purchases were to be made.” We understand this to be a conclusion of law, and we think it is erroneous. An analogous question arose in Zabriskie v. Smith, 3 Kernan, 322. There [63] the action was brought for false representations made by the defendant in April, as to the solvency and pecuniary standing of a third party, upon the faith of which the plaintiffs sold to the third party goods in April, and at divers times down to the eleventh day of November following on credit, though no further representations were made after April. Denio, J., in delivering the opinion of the court, says : “It would be manifestly unreasonable to limit the defendant’s liability strictly to the very time of making the recommendation, for it would have been as likely to operate upon the plaintiff’s mind at any time during the same season, and within a few weeks or months, as at the time when it was given. "Whether according to the common usage of men of business, a fresh inquiry would be likely to be made at a time not more remote than that of the last purchase in this case, presented a question for the, exercise of the good sense of the jury, &c.” See also 2 Hilliard on Torts, 152. The case before us is stronger than the case of Zabriskie v. Smith, because here the time which elapsed between the representations and the credit was shorter, and perhaps for the further reason, that here the representations were made by the defendant himself, for his own personal benefit. We think there is good sense, justified by daily experience, in the doctriné enunciated in Zabriskie v. Smith. Where one man induces another to deal with him and to give hire credit by false representations as to his business condition, and when the credit is based entirely (as in this case) on such representations, and would not have been given without them, and shortly afterwards further credits are given' though without fresh representations, it would naturally follow in the absence of any thing to the contrary, that the subsequent credits might be and probably were influenced by the information obtained from the party himself in the first instance. Under such circumstances the course of dealing has its origin in fraud and deceit, and parties ought to be held responsible [64] for the natural and usual consequences of their own wrong as business is ordinarily transacted. The court below having erroneously, as we think, come to the conclusion that the false representations made in May, could not, under any circumstances, affect or influence the purchases made and credits given in September and October, unless it was specially agreed that these purchases should be made on the faith of such representations, of course could give no effect to the facts contained in the affidavits; that is to say, the decision of the court was based on a proposition of law which we hold to be untenable, and not upon the facts upon which the attachment rested when tried and weighed by what we regard as the law of the case. This result makes it necessary for us to determine whether upon the facts appearing, the motion to dissolve should have been granted. In the first place, we think that the original affidavit upon which the attachment issued was sufficient to make out a prima facie case of fraud, upon which the court commissioner was authorized to allow the attachment, and that the counter affidavit of the .defendant did not meet the statements of the original affidavit. Of course the action of the commissioner should not have been reversed without some good reason. In the second place, when we take into account all the affidavits used upon the hearing below, a still stronger, and to us quite satisfactory case, is made out in support of the attachment. Without entering into particulars, it is quite apparent that the debt was fraudulently contracted, and the other requirements of the statute in regard to the allowance of attachments seem to be complied with. The order vacating and dissolving the attachment is accordingly reversed.