Wilcox v. Howell , 44 Barb. 396 ( 1864 )

By the Court, Welles, J.

I have examined this case carefully, and am satisfied with the findings of fact by the court at sjDecial term. I am also satisfied with the conclusions of law arrived at by the court, and think the judgment should be affirmed.

The fraud in regard to the sale of the watches was proved beyond controversy.

The only question worthy of serious consideration, upon the merits, is in relation to the certificate given by Howell, the mortgagor, dated the same day with the bond and mortgage, in which he declared that the bond and mortgage was given for a good and valid consideration, to the full amount thereof, and was subject to no offset or defense whatever. It is observable, in reference to this certificate, that it was given on the same day the mortgage was executed, and before the defendant Howell had any notice or knowledge of any fraud practiced upon him in .the sale of the watches. That if Howell and his wife have not testified falsely, a most villainous fraud has been practiced upon him, not only in the sale of the watches, but in obtaining the certificate from Howell. It is true that the witnesses Jacob Picard and DeLano deny what Howell and his wife swear to, on the subject of the certificate, but the testimony of all four of these witnesses was before the special term, and presented a fair question of fact for the justice to consider and decide, and I think he has determined it judiciously. Howell appears to have been hard pressed for money. He also appears to have been an artless, unsuspicious and credulous man, and proved an easy victim to the band of sharpers into whose hands he was betrayed. The fraud perpetrated upon him by the Picards and Bosenthall, in the sale of the watches, is not attempted to be disproved. A man who can be guilty of, or become accessory to, such inquity has no moral or conscientious sanctions to restrain him from the commission of any other crime which may become necessary to effectuate the original fraudulent and wicked purpose. It is most apparent, on the hypothesis that Howell and his wife have testified truly, that he did not know the object, design or effect of the certificate, when he signed it; that he hesitated when it was presented to him for his signature, and when he inquired what it was, he was told that it was nothing, only a matter of form. He then asked Picard if he would keep the mortgage after it became due, if .he could not pay it then, and he said he would. And on that assurance Howell signed the certificate.

Upon this view of the facts, the certificate did not amount to an estoppel in favor of the plaintiff. It was not addressed to him; and so far from being intended by Howell to enable Picard to sell the mortgage to the jflaintiff, or to any one else, it was designed to effect a directly contrary object, to to wit: to induce Picard to hold the mortgage until it became due, and longer if Howell should not then be able to pay it.

The execution of the mortgage and the signing of the certificate, were done at the same time, and were parts of one and the same transaction. They were both, with the assignment of the mortgage, delivered to-the plaintiff at the same time, and in pursuance of an agreement between Picard and the plaintiff, entered into previous to the execution of the mortgage, for the sale and assignment of the mortgage by the former to the latter. The certificate, it therefore seems to me, can have no other or greater effect, in any respect, than if the substance of it had been inserted in the form of a covenant, in the mortgage. If that had been done, it is settled that it would not amount to an estoppel. (Mechanics’ Bank v. N. Y. and New Haven R. R. Co., 3 Kern. 638.)

Again; the representations or declarations of a party, in order to constitute an estoppel in pais, must be designed by the party making them to influence the conduct of the party who alleges the estoppel—or of some other person who is in fact influenced by them to adopt a line of conduct inconsistent with their falsity. (Welland Canal Co. v. Hathaway, 8 Wend. 483.)

And still again; the certificate was procured for the sole benefit and under the requirement of the plaintiff. Picard had no occasion on his own account to have the declarations made which it contained. He well knew the statements were not true, and that the defendant Howell at the time he signed the certificate, believed them true, although the latter, very soon afterwards, ascertained their entire falsity. May not Picard, under these circumstances, be regarded as acting as agent for the plaintiff as well as in his own behalf, in procuring the certificate from Howell ? ■ I incline to the opinion that he may; and if that be so, the plaintiff is chargeable Avith the conduct of Picard in obtaining the certificate, and can derive no benefit from it.

[Monroe Generar Term, June 6, 1864.

Once more; viewing all the circumstances together, as developed by the testimony, the value of the mortgaged premises ; the facts that the plaintiff held, and knew of incumbrances upon them to the amount of $6000 ; his willingness, not to say eagerness, to obtain enough more to swallow up the whole value, or so nearly so as to render it highly improbable that HoAvell, in his embarrassed circumstances, would be able to pay them off; the fact that he was informed, before the mortgage-was executed, that it was to be given in part for the purchase of watches—the last kind of property which the defendant needed—and the purchase by the plaintiff of the mortgage being negotiated before it Avas actually given; of the actual sale and assignment to him of the mortgage, the same day it was given, at the enormous discount of $900 ; were sufficient to awaken and should have aAvakened his suspicions that all was not right, and should have led him to further inquiry; and were enough to charge him with notice of the fraud, as the court at special term has properly found.

I have examined all the exceptions to the rulings at the trial, in the exclusion or admission of evidence, and fail to perceive in any one of them a sufficient ground for the reversal of the judgment.

For the foregoing reasons I am of the opinion that the judgment should be affirmed, with costs of the appeal to be paid by the plaintiff.

Ordered accordingly.

Johnson, James O. Smith and Welles, Justices.]