Segur v. Tingley , 11 Conn. 134 ( 1835 )

Williams, Ch. J.

It is claimed, on the part of the plaintiff, that this contract was entered into, under such circumstances, that he is entitled to relief in a court of equity.

The claim must be founded upon the supposition of fraud, accident or mistake.

It is not claimed, that there is any accident, which is a ground for interposition. The plaintiff must, then, rely either upon fraud or mistake.

With respect to fraud, although it is not expressly negated, by the court, there are no facts from which it can be fairly inferred. The defendant did not even make the application to the plaintiff to buy, or propose to sell to others. His partners, wishing to be rid of him, proposed to him to sell, and he agreed to it, if they would find a purchaser, upon his terms. The plaintiff was spoken to, by them, not by the defendant. He acceded to the terms. Other gentlemen were called in with him, to examine the books and the property, and ascertain the debts due from and to the company. The defendant opened to them the books : disclosed the state of the concern, so far as he was acquainted with it; and no one fact is shown tending to prove, that he mis-stated or concealed a single fact, which was known to him. It was, indeed, said, that a sale of goods in New- York, made in March preceding, was shown ; and that a subsequent sale had been made, on the 1st of September, at a less price, which the defendant knew of, or might have known of. It is enough to remark, upon this subject, that there was no evidence tending to show, that the defendant had any knowledge of that fact. And the court are called upon to presume, that the knowledge of this sale, must have been communicated to the defendant, before the sale to the plaintiff.

In answer to this, it is to be remarked, in the first place, that fraud is not to be presumed ; and in the next place, that the contract between these parties was made on the 14th of August, 1832, although the bonds were not signed until September following; and there is no evidence that any sale was made after March and before September, in New- York. After the terms of the contract were settled, it is difficult to see how a sale then made should affect the contract, especially, when there was no evidence that the defendant had knowledge of it.

But why should there be any presumption on the subject ? The commission merchants resided within thirty miles of the parties ; and if they gave any such notice as is claimed, the plaintiff might easily have proved it. There can, then, be no ground to say there was actual fraud, or the concealment of facts important to the plaintiff, which were known to the defendant.

The case must, then, rest upon the ground of mistake. This must be either in the amount of debts due from the company, or the amount due to the company, or the estimate of property on hand, or in relation to the debts due from Daniels and - Gates, and Daniels, Gates & Co,.

As to the debts due to the company, they were originally estimated at 2,000 dollars ;-at least, not to exceed that sum. But upon more minute examination, the plaintiff actually engaged to become responsible for debts to the amount oí 2,350 dollars, and actually took a bond from the defendant to indemnify him, the plaintiff, from all damages, if the debts should exceed that sum. This fact shows, that it was not considered as certain but the company debts might exceed that sum, and also shows, that the plaintiff has provided himself with a remedy at law to secure him against that event.

As to the estimate of the property on hand. The estimate was, that the avails of the goods in Walkinson’s hands would pay any debts due Pratt, Howe, & Co. To ascertain this, it was necessary to ascertain what goods were sent to those gentlemen, and then calculate whdt they would produce. These accounts were particularly examined : the quantity of satinets, sold and unsold, sent to them, and their advances and acceptances were stated from the books, and an account of the last sales exhibited. So far all was fair. They might have sent to Hartford, and ascertained a subsequent sale, if there had been any, or got more recent accounts of the state of the market ; but it was not done, and the parties were contented to form their calculations upon the data they had. And it seems as fair for the plaintiff, as for the defendant. If the goods rose in the market, the plaintiff received the benefit of it. If they fell, the defendant gained an advantage. In the former case, the defendant could not have, claimed any thing from the plaintiff. Why, then, should the plaintiff now claim of the defendant ? No misrepresentation or concealment, of facts being shown, the result depended merely upon the state of the market. And on this subject, the court will not undertake to estimate the speculations of parties in a contract, but will deem them the best judges of their own views. Ward v. Webber & ux. 1 Wash. 279.

Then as to the debt due from Daniels and Gates, It is said,; that it was not exhibited as a credit, in the schedule which was exhibited of the debts due to the company; and yet he was purchasing the credits of the company, and the whole amount of credits exhibited was bat 275 dollars. That it was known to the plaintiff, that there was an unsettled account with that concern, is perfectly apparent; because one of the conditions of the contract of the 14th of August was, that the defendant and Daniels and Gates should adjust, in an amicable manner, their company account. And it also appears, that before the business was closed and the bond executed, an arbitration was bad, and this adjustment made. As this was one of the con- ditions the plaintiff had prescribed, he must be presumed to have known, that it was complied with, before he closed the business. He must then, if not before, have known, that this was among the credits of the company. And if he did obtain this knowledge from the defendant, the mode is of little impor- tance. It

is said again, not to be credible, that the plaintiff would he willing to purchase this debt against men who are insolvent. What motives influenced the plaintiff's mind, do not appear. He might have had more confidence in these men than others had ; or trusted more in their honour; or thought better of the security; or may have thought it important to have the con- troul of the debt. In the absence of evidence, it is as easy, and certainly it is as charitable, to presume, that he wars fairly in- fluenced, as to presume he was led into it, by deception, or even that there was a mistake. But when

it is found, that at the close of the contract, this plaintiff asks what he buys, and is expressly informed, among other things, that he buys the Daniels and Gates debt, as well as the other debts, it is very difficult to believe, that the plain liff was not fully apprised, that he was to take that debt, though, at the time, the amount might not be ascertained. It is

said also, that it was supposed the debt was secured ; and that it was but partially secured, or perhaps, there is no security. Now, an agreement may he set aside, by reason of a mistake of the parties making it. if the point misconceived, be the cause of the agreement; (2 Pow. on Cont. 196.) or per- haps, if it had an important influence upon it. This is not a mistake of that kind. There is no evidence to show how far it was supposed the debt was secured ; or that any attempt was made to ascertain the fact, or any reliance placed upon it. Nor is it even stated in the plaintiff's bill, as a ground of relief, that there was a mistake upon this point. It cannot, therefore, be Windham, July, 1835. expected, that the court will set aside this contract, upon that ground,

Upon the most careful examination of the facts, the court do not discover any fraud or misrepresentation on the part of the defendant; nor any mistake on the part of the plaintiff, except mistaken calculations and an unprofitable bargain. He was not taken by surprise ; it was not a hurried transaction ; on the contrary, time was taken, advice was obtained and a deliberate opinion formed. The first of the writings is dated the 14th of August, and the last was not signed until the 22nd of October. During all this time, no complaint is heard.

The result is, that there are no facts shown sufficient to warrant the interposition of a court of chancery. The superior court, are, therefore, advised, that the plaintiff's bill ought to be dismissed.

The other Judges were of the same opinion.

Bill to be dismissed.