Frisbee v. Fitzsimons , 10 N.Y. Sup. Ct. 674 ( 1875 )

Daniels, J.:

This action, as it was tried, was for the recovery of damages occasioned to the plaintiffs by means of misrepresentations made by the defendants, concerning the solvency of Maxwell & Atwood. The court submitted it to the jury, on the theory that the plaintiffs’ right to recover depended upon the fact that the representations were made to deceive them, or else that' the defendants designedly concealed facts from them, which it was important for them to understand, in order to form an intelligent conclusion concerning the probable pecuniary ability of that firm. As the law is now well settled, the plaintiffs had no right to require a more favorable statement of the principles on which their claim was legally dependent.^* And they did not do so, but simply excepted to what had been said, in reference .to the necessity of an intent to deceive, in order to enable the plaintiffs to maintain their action. That intent may well be inferred from representations, either known to be false by the person making them, or which he may have no reason to believe to be true.

A stipulation was made in the case, allowing the defendants to read in evidence certain affidavits used on a motion to change the place of trial. These affidavits stated, in substance, that the firm of Maxwell & Atwood did have sufficient property to pay their debts, when the defendants recommended them as worthy of credit. The court referred to the admission, as one relating merely to their real property. In that it was in error, and it would no doubt have been at once corrected, if the counsel had suggested the mistake. That was not done, but an exception was taken to what the court had said in reference to the stipulation without in any manner indicating the inaccuracy complained of. This was not sufficient to present the point now urged by the plaintiffs’ counsel.

Proof that the plaintiffs would not have sold to Maxwell & Atwood, if they had known of assignments by them to the defendants, was properly excluded, as long as no such assignments had then appeared to have been made. That fact should have been first shown, to have rendered the answers proper.

The court, at the trial, could not strike out the stipulation, even if the statements made in the affidavits appeared, in some respects, to be untrue. That might have been good ground for a motion at Special Term to be relieved from the stipulation, but it formed no part of the trial of the action.

At the close of the , evidence, an application was made by the plaintiffs for the court to direct a verdict in their favor. The facts of the case were too much in dispute, to justify a compliance with that request. The plaintiffs’ right to recover depended upon contested matters of fact, rendering it the appropriate province of the jury to decide the dispute in the case. It was fairly submitted for that purpose, and the judgment should be affirmed.

Davis, P. J., and Beady, J;, concurred.

Judgment affirmed.

* Viele v. Goss, 49 Barb., 96; Marshall v. Gray, 57 id., 414; Robinson v. Flint, 58 id., 100; Hubbard v. Briggs, 31 N. Y., 518, 529; Marsh v. Falker, 40 id., 562; Meyer v. Amidon, 45 id., 169; Oberlander v. Spiess, id., 175.