Cahn v. Ladd

Winslow, J. The claim of the plaintiffs was that Btrouse purchased the goods fraudulently, intending not to pay for them, .and that he made false representations as to his pecuniary condition, which were relied on by the plaintiffs in making the sale. The alleged false representation chiefly relied on by the plaintiffs is testified to by one Marks, a traveling salesman of the plaintiffs, as having been made to him in March, 1893, and is to the effect that he (Btrouse) had purchased a stock of clothing of L. J. Strouse, at La Crosse, which would inventory at $12,000, for fifty cents on the dollar, and that he would pay $2,000 cash therefor and the balance in six, twelve, eighteen, and twenty-four months, 136 and that besides the $2,000 in cash which he was to pay L. J. Strouse he had $4,000 to distribute among new purchases. The defendant Strouse testified to substantially the same thing. He says that he told Marks that he had bought out the'business at fifty cents on the dollar, and that it would inventory about $12,000; that he was going to pay $2,000 to L. J. Strouse, and had $4,000 to distribute among bills he was going to buy. The controversy was not really as to what Strouse said to Marks, but as to whether the statement was made for the purpose of securing credit at all, and whether, if so, it was not substantially true. Upon cross-examination of Strouse he was asked if he did not write a certain letter to a Philadelphia firm in March, 1893, and against objection and exception he answered that he did, and the letter was received in evidence against objection. The letter was written to obtain credit, and contained the following sentences: “ I bought the stock of L. J. Strouse, amounting to $12,000, for $6,000, together with his good will and influence; terms, $4,000 cash, balance in two unsecured notes at $1,000, running one and two years, at five per cent, interest. I have, besides, $2,000 in cash to distribute jpro rata among my new purchases, and you will receive your share put of that. Have also $1,000 outstanding in St. Paul, from my former business.’'1 It was not claimed that plaintiffs ever saw the letter, but it was claimed to be proper impeaching evidence. We think its admission was erroneous. The controversy was as to the truth, meaning, and effect of certain statements made to Marks, and upon this issue the statements made to others can cut no legitimate figure, nor do they appear to impeach any material statements made by Strouse as a witness. Huganir v. Cotter, 92 Wis. 1. Upon request of the plaintiffs the court charged the jury as follows: “You are further instructed that, if you find that any witness has testified falsely regarding any material matter, you are at liberty to disregard all his testimony, ex 137 cept so far as may be corroborated by other evidence.” This was erroneous. It allows the jury to disbelieve the-entire testimonjr of a witness simply because he may have-made an innocent mistake. Little v. Superior R. T. R. Co. 88 Wis. 402. For these errors there must be a new trial. By the Court.— Judgment reversed, and action remanded’ for a new trial.