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    Moritz Von Bruck et al. plaintiffs and appellants, vs. Frederick M. Peyser, defendant and respondent.
    1. In an action for falsely, and fraudulently inducing the plaintiffs to sell goods to a third person, on credit, the defendant’s liability depends upon the falsity of his statements with his knowledge thereof, and their effect upon the business dealings between the plaintiffs and such third person. These being questions of fact, proper for the consideration of the jury, unless there has been too great a lapSfe of time between the making of the representations and the giving of the credit, it is error to take those questions from the consideration of the jury, and dismiss the complaint, upon the trial.
    2. Although there must be by law some limit to the period of time during which it is fair to presume and allow a party to claim, that the influence of the false representations continued to operate, like all questions of a similar nature, of mixed law and fact, the length of such time must depend upon the facts and circumstances of each case. In all such cases, it is for the jury, and not the court, to determine whether the plaintiff continued to be operated upon by the representations; and it would be proper to instruct the jury that they are to ascertain, from the evidence, and determine, such fact. (Robertson, Ch. J. dissented.)
    3. Held, in this case, that the question whether the plaintiffs were influenced in making sales to a third person in 1860, by representations made by the defendant two years and four months previously, as to his responsibility, should have gone to the jury; it appearing that the defendant, after the making of the original representations, had, in July, 1860, again intervened, acting as the agent of such third person; but personally promising the punctual payment by the latter of a new indebtedness, then incurred at the end of a proposed credit.
    '4.. One who induces another to give credit to a third party, by a fraudulent suppression or concealment of the latter’s .embarrassments and indebtedness, ) at the time when he is bound to disclose them, is liable to the creditor, in an i action for damages for the loss thus occasioned.
    5. In March, 1858, the defendant, by letter addressed to the plaintiffs, announced a transfer by the former, of his business, with debits and credits, to a third person, who would “ continue the same with undiminished means,” under the firm of E. K. successor to the defendant. The letter requested the plaintiffs to “ extend the same confidence to his (the defendant’s) successor they had hitherto reposed in him.” The defendant subsequently stated to one of the plaintiffs that he, being a man of property, had given up his business to such third person; that “ in fact the concern would remain altogether the same, with an alteration in the firm.” At the time of making these representations such third person was indebted to the defendant for the whole purchase money of his stock of goods, and $2000 for borroxved money; and had no other means than such goods and .borrowed money. He subsequently gave the defendant a chattel mortgage on all his stock in trade, to secure the payment of $28,000. The representations made by the defendant induced the plaintiffs to sell goods to such third person on credit, the price of which they were unable to collect, of him. Seld that the defendant was liable to the plaintiffs for the loss they had suffered in consequence of the making of the representations in question.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard October 6, 1864;
    decided December 16, 1864.
    The action was to recover damages as well for a false and fraudulent representation made to the plaintiffs by the defendant, as for the fraudulent concealment from the plaintiffs of facts within the defendant’s knowledge.
    On the trial, before a justice of this court and a jury, it was proved that on the 1st of February, 1858, the defendant wrote and transmitted to the plaintiffs a letter of which the following is a copy:
    “ New York, February 1, 1858.
    Messrs H. Von Brack’s Sons.
    I hereby respectfully advise you that I have this day made over my business, with debits and credits, to my brother-in-law, and assistant for many years, Mr. Emil Kanter, who will continue the same with undiminished means, under the firm of ‘ Emil Kanter, successor to Fred. M. Peyser.' In giving you my best thanks for the confidence reposed in me hitherto, I beg that you will extend the same also to my successor, and I am, Respectfully and humbly, F. M. Peyser.”
    One of the plaintiffs testified that after the receipt of this letter, the defendant came to Orefeldt, in Prussia, the plaintiffs’ residence, on the 3d of June, 1858, and repeated the statement contained in the letter, and told the plaintiffs that he himself being a man.of property and purposing to live in Europe thenceforth, had given up his business to his brother-in-law, Kanter ; that in fact the concern would remain altogether the same, with an alteration of the firm ; that these representations had the greatest influence on their business dealings with Kanter, to whom being totally unknown to' them, they should else never have allowed a single cent of credit.' He further testified that they (the plaintiffs) perfectly relied upon the integrity of the defendant’s statements and felt safe in consequence. Upon his cross-examination, the same witness testified that at the interview with the defendant on June 3d, 1858, they wanted him to interpret the meaning of the expression in his letter, “ undiminished means,” (literally unweakened means.) In answer to which the defendant told them that he himself being a man of property and purposing to live in Europe henceforth, had given up his business to his brother-in-law ; that in fact the concern would remain altogether the same with an alteration of the firm. It was admitted in the answer that for a long time prior to February 1858, the defendant had been engaged in a lucrative business in New York, and had realized a fortune ; and had theretofore been accustomed to purchase goods of the plaintiffs on. credit, and had always paid for the same.
    ■ The answer further admitted that at the time of the" purchase Kanter had no property or means, except that the defendant at tliat time gave him a large amount of stock-and fixtures, good will and lease of store, of the value of $18,000 or $20,000, which then became the property and means.of Kanter. It was further admitted that, except as aforesaid, Kanter purchased the business upon credit, and that the defendant knew the facts above set forth as to property, means and credit. The defendant further admitted that, for the purchase, Kanter was indebted to him in the sum of $7000, and-that he loaned him in addition '$2000 more to carry on the business ; and that at the time of the purchase Kanter gave him a chattel mortgage upon the goods which he had on hand.
    The first purchase made by Kanter of the plaintiffs was July 10, 1858, and the last October 3d, 1860. All the purchases made in 1858 and 1859 were paid. In 1860, the purchases amount to 11,982 francs, which were not paid for. It was proved that the goods sent to Mr. Kanter were personally selected for him by the defendant from the plaintiffs’ stock in their warehouse, or were ordered by the defendant to be manufactured for and sent to Mr. Kanter on credit.
    The plaintiffs gave in evidence two other letters, as follows:
    “ To H. Yon Bruck Sons,
    Kranftle, near Hamburgh, June 29, 1860.
    I beg you, after receiving this letter, to send me samples of velvet trimmings of all sorts of breadth, as I am inclined to give you an order for it, if the samples and prices are suitable. Yours, &c. Feed. M. Peyseb.”
    “Messrs. H. Yon Bruck Sons,
    Kranftle, near Hamburgh, 16th July, I860..
    I hereby take the liberty to give you for Mr. Emil Kanter the following orders, and you will see to have good fabrics and fine selection of colors. I also beg you to let the goods be cut per 11 metre. As regards the conditions, you will receive payment from Emil Kanter in1 six months from the date of the invoice by three months drafts on Hamburgh, punctually. I hope you will be satisfied by it, as Mr. Kanter has received the same conditions from all his other European friends.
    Yours, &c. . Feed. M. Peyseb.”
    At the close of the plaintiffs’ evidence, upon the defendant’s motion, the justice dismissed the complaint,- and the plaintiffs excepted.
    Judgment was thereupon entered and the plaintiffs appealed.

      C. Wehle and T. Darlington, for the appellants.
    1. The plaintiffs having been induced by the false representations of the defendant,, to sell to Emil Kanter on credit, and having thereby sustained the loss of the goods in question, are entitled to recover against the defendant the damages sustained. by them. /This being an action for deceit, the two elements necessary to constitute the same, are : Deceit on the part of the defendant, and damage resulting therefrom to the plaintiffs. (White v. Merritt, 7 N. Y. Rep. 352.) And the action will lie, whenever there has been the assertion of a falsehood as to a fact with a fraudulent design, when positive injury arises from such assertion. (Bacon Abr. title Action on the case, F. Sharp v. The Mayor, 25 How. Pr. 389. Thomas v. Beebe, 25 N. Y. Rep. 244. Benton v. Pratt, 2 Wend. 385.) And the fact that the defendant, at the time of making the false representations, knew them to be false, is evidence of his fraudulent intent. (Addington v. Allen, 11 Wend. 374.) But. it is not necessary that actions of this kind should be based upon the actual assertion of a falsehood ; the mere concealment of the truth, if done with the intent to deceive or defraud, renders the defendant liable. (Williams v. Wood, 14 Wend. 126. Allen v. Addington, 7 Wend, 9. And 11 id. 374.) And concealing the truth is not only evidence of falsehood, but also of fraudulent intent. (Same cases.) Nor is it necessary to show in this action that the defendant reaped any advantage from his false representations ; damage to the plaintiffs as the result of false representations is sufficient, although without benefit to the defendant. (White v. Merritt, 7 N. Y. Rep. 352.) We here invite a comparison between the letters in these cases and the one on which this action is based.
    In summing ’ up this point, we would say: There having been established by proof without contradiction, and beyond the possibility of any doubt: (1.) The defendant’s representation as to Kanter’s solvency ; and as to the sale of the business lo Kan ter. (2.) The falsity of these representations. (3.) The defendant’s knowledge of the falsity of these representations at the time of making them. (4.) The defendant’s fraudulent suppression of the facts that Kan ter was indebted to him in a large amount, and that he held a chattel mortgage on the very business which he pretended to have sold to Kanter absolutely. (5.) The plaintiff’s reliance on said representations; and (6.) The plaintiff’s loss-by means of said representations. Judgment ought to have been ordered for the plaintiff for the amount of his loss.
    II. The fact that Kanter paid one part of the debt which he was enabled to contract by means of the defendant’s false representations does not release the defendant from his liability for the balance. (Williams v. Wood, 14 Wend. 126.)
    III. Even if the defendant had not been aware of the falsity of his representations, he would still be liable ; for he certainly made them without knowing them to be true, and- caused in-x-jury thereby. (Bennett v. Judson, 21 N. Y. Rep. 238. Sharp v. The Mayor, 25 How. 389.)
    IV. The evidence shows that Kanter was insolvent at the time when he was represented as worthy of credit by the defendant ; bub it is immaterial whether he was or was not; the defendant is liable on the grounds that his representations were false ; that he fraudulently concealed material facts, and that injury was thereby caused to the plaintiff. (See.cases in Wend. above cited.)

      W. H. Peckham, for the respondent.
    The court did not err in dismissing the complaint. The only evidence of representations made by the defendant is the letter Exhibit No. 1, and the testimony of the witness Seyffardt, that the defendant “repeated that statement.” The only material clause in the letter is the statement that Kanter will continue the business “ with undiminished means.” . There is no evidence in the case that this statement was false. The phrase “undiminished means,” or literally “unweakened means,” does not mean that Kanter was a man of equal pecuniary means to the defendant; nor does it state, or mean to state, any thing about the amount of property owned by, or the pecuniary responsibility of Kanter. It means simply' to state that the amount of capital invested and employed in the business by the defendant up to the first of February, 1858, should still remain in it after that date. The business should not be, and was not crippled by any withdrawing of capital. In commercial business a certain amount of capital is needed. Now, whether the person carrying on the business is the owner or the borrower of the capital, is immaterial, so far as the business is concerned. The point is, that that amount of capital shall be available for the purposes of transacting the business. And that the plaintiffs understood the phrase in this light is apparent from the testimony. They understood and believed that the defendant Peyser was still interested in the success of the business, because they understood he had “ left his money in the concern of Kanter.”

    Now the plaintiffs could not have understood that the defendant Peyser had left his money in the business as a silent or special partner, or so as to entitle him to a share of profits, because the letter expressly says that he, Peyser, has made over his business with debits and credits to Kanter, and because the plaintiff himself speaks of the business as the “ concern of Kanter,” and because if they, the plaintiffs, had so understood it, or if the defendant had so represented it, the plaintiffs would have brought their action on contract against the defendant as a partner of Kanter. If the plaintiff’s then did not understand the defendant to have left his money in the concern, so as to entitle him to profits, they necessarily must have understood that he left it in as a loan to Kan ter. From this they must have necessarily inferred that Kanter was indebted to the defendant in at least the amount that the defendant left capital in the concern. These inferences are irresistible from the letter and the testimony. And from the answer to the 7th interrogatory of the witness Yon Brack, it is apparent that the witness was under the impression that Kanter’s whole capital was the amount loaned or “left” him by his brother-in-law, the defendant Peyser.
    These considerations go to show two things : 1st. That we-are correct in our construction of the term “unweakened means.” 2d. That it is at least the construction given to that term by the plaintiffs, and, therefore, unless false in that respect, the plaintiffs have not been deceived or defrauded. That it is false in that respect there .is no pretense. There is no evidence as to the amount of capital, or “means” used by Peyser in his business, nor is there any evidence that the capital or “means ” used by Kanter were less.
    There being then no evidence impugning the strict truth of the terms of the representation, we submit that the inference that by that letter the defendant Peyser “intended to make his connections sure of Emil Kanter’s solvency,” is entirely unwarranted. The letter would be quite as strong in that .way, if it did not contain the words “ undiminished means.” Those words, as we have seen, and as the plaintiffs also understood them, had no reference, to the comparative wealth or means of Kanter and Peyser, but simply to the amount of means that should thereafter be disposable for the business. To hold this letter to be a representation of the solvency of Kanter would be to hold that every letter announcing a sale, and in the formal and customary language requesting a continuance of favors to a successor, would be a representation of the successor’s solvency. There are no cases so holding. In Upton v. Vail, (6 John. 181,) there was a direct statement of the solvency, and good credit of the clefaulting party. In Williams v. Wood, (14 Wend. 126,) there were direct representations of character, &c. shown to be false. In Allen v. Addington, (7 id. 9 ; 11 id. 374,) there were direct actually fraudulent acts and intention on the part of the defendant, of which the defendant himself reaped the benefit. In Zabriskie v. Smith, (13 N. Y. Rep. 322,) solvency was directly alleged.
    But even were the letter construed as a representation of solvency, there is no evidence whatever of its falsity. There is no evidence that at the time of the purchase Kanter owed any thing. Now the owing of debts is a necessary condition of insolvency, and when a solvent merchant purchases a stock of-goods at a fair price and promises to pay for it, that purchase cannot make him insolvent. True he owes for the goods,'but he has the goods to respond to the indebtedness. The purchasing of a stock of goods “ entirely on credit” is in no way blameable, unless at the time of or before the purchase the purchaser owes what he cannot pay. Therefore, even were the. letter, construed to be a representation of solvency, it was not untrue.
    Again: the case at bar differs from all .the cases reported, in the facts, that at the time of the representation, Kanter was not at all embarrassed ; that the defendant was, up to the time of the sale, not the creditor of Kanter, and that the defendant himself, at the time of writing the letter to the plaintiffs, made the sale to Kanter, and taking no security therefor—the chattel mortgage to the defendant not being taken till 18th May, 1861, more than one month after the last invoice sold by the plaintiff's to Kanter became due. ■
    There is no evidence of any intent to defraud on the part of the defendant. Such an intent is necessary to sustain the action. (Zabriskie v. Smith, 13 N. Y. Rep. 322.) The defendant certainly, on the broadest construction of his letter, recommended others to do no more than he himself did. In fact the case affirmatively negatives all intent to defraud.
    The letter itself, so far as it means any thing, is rather an opinion or promise than a representation. The phrase is, “ Who will continue the same with undiminished means i. e. the writer thinks or promises that the means will not be diminished. The expression, in terms as well as sense, refers only to the future. It is unnecessary to cite authorities to show that an opinion or promise will not support an action for false representations. The representation must be of an existing fact.

    The whole case clearly shows that the plaintiffs have not been deceived. They gave credit to Kanter, not on the ground of any special statement of Peyser, but because they believed that P.ey ser had confidence in him, and “ left his money in the concern.” In other words, they did as Peyser did ; they lost not on account of any transactions existing at the time of the writing of the letter ; but so far as the case shows, from subsequent difficulties, and the only reason why they lost rather than Peyser is, because Peyser showed the greater vigilance in obtaining a mortgage, which mortgage was given more than forty days after the maturing of their last invoice..

      The sales were too long after the writing of the letter to have heen influenced by it. True, in Zabriskie v. Smith, that was held a question for the jury ; but that was a case of but a few months ; this is a case of more than two years. No jury would be warranted in connecting the two, and if they did their verdict would be set aside.
   By the Court,

Monell, J.

The representation contained in the defendant’s letter of the 1st of February, 1858, that Kanter, to whom he had sold and transferred his business, would continue it with “undiminished means,” was a representation capable of being interpreted into meaning that the pecuniary means and facilities possessed by Kanter were equal to those possessed by the defendant, and that such means and facilities would be employed by Kanter in conducting his business as the defendant’s successor. The defendant, for many years, had been engaged in the business to which Kanter succeeded, and from which he had acquired large wealth. His dealings with the plaintiffs had extended through a number of previous years, and they knew him to be a man of “ means,” and worthy of credit; and they believed, not only from their own construction of the letter, with their previous knowledge of the defendant’s circumstances, but from his subsequent interpretation of the significance of the words “undiminished means,” that Kanter was equally worthy of credit. In the sales made to Kanter, the plain tiffs relied upon the integrity of the defendant’s statements, and as one of the plaintiffs testifies, his representations had the greatest influence upon their business dealings with Kanter, to whom, being totally unknown, they should else never have given any credit.

There was sufficient evidence that the representations were made, and that they were relied upon by the plaintiffs in their subsequent dealings with Kanter. It hence became a question for the jury to determine, whether the representations were capable of the interpretation placed upon them by the plaintiffs. The action was in tort for a false and fraudulent representation, which induced the plaintiffs to sell their goods to Kan ter on credit. The defendant’s liability depended upon the falsity of his- statements, and his knowledge thereof, and their effect upon the business dealings of the plaintiffs with Kan ter. These were all questions of fact, proper for the consideration of a jury ; and unless the length of time intervening, between the receipt of the defendant’s letter of February, 1858, and the sales in the summer, of 1860, in judgment of law, operated to prevent any supposed influence, which at an earlier period did operate upon the minds and govern the actions of the plaintiffs, then, I think, it was error to tal?e those questions from the jury.

It may be that the law will not presume, and will not allow a party to claim, that representations which are believed and acted on to-day, have a continuing influence for all time. There probably must be some limit; but it is difficult, if not impossible, to say where the period should be placed. Like all questions of a similar nature, the extent of time to which it is fair to presume, or to permit a party to claim, that the influences continue their effect, must depend upon, the facts and circumstances of each case, and therefore no general rule can be adopted. In all such cases, it is for the jury, and not the court, to determine whether the .parties continued to be operated upon by the representations previously made, and it would be proper to instruct the jury that they were to ascertain from the evidence, and determine such fact. The only case that I have been able to find, in which this precise question has been discussed is Zabriskie v. Smith, (13 N. Y. Rep. 322.) There the representation relied on was made some months before the last sale, and the court say it is a question for the jury, whether the sale was influenced by representations made some months previously. In short, that it was not a question of law, but of fact. I am, therefore, of opinion that the question, whether the plaintiffs were influenced in the sales made in the summer of 1860, by representations made in 1858, should have-gone to the jury.

There is another view of this case, presented by the pleadings and proofs, which I will briefly notice.

The action, in part, is founded on a fraudulent suppression of facts by the defendant, and there was some evidence to support that branch of the- case. K,anter had no means;'had purchased the business wholly on credit, and was largely indebted to the defendant therefor. Those facts were known to, and suppressed by, the defendant. In all the purchases made of the plaintiffs, he acted as the agent and friend of Kanter. He liad frequent personal interviews and written correspondence with the plaintiffs, on Kanter’s behalf. As late as J une 29 and July 16, 1860, he gave written orders for goods to be sent to Kanter in which he gave assurances that the bills would be punctually paid. At no time did he disclose to the plaintiffs the facts, of the transfer of his business to Kanter, and Kanter’s large indebtedness to him, for which he held a chattel mortgage upon all of Kanter’s stock in trade, given, as jt is fair to infer from the evidence, at or shortly after the sale. By the dismissal of the ¿omplaint, this branch of the case was also taken from the jury. It is quite clear, I think, that if the defendant, knowing the facts attending the sale to Kanter, and his circumstances, did, by his representations or acts, induce the plaintiffs to give Kanter credit, suppressing such facts, he would be liable in this action.

Upon the whole, I am of opinion that both the questions should have gone to the jury, and that it was error to dismiss the complaint.

Judgment should be reversed, and a new trial ordered, with costs to abide the event.

Robertson, Ch. J. The cause of action in this case consists of a deceit practised by the defendant on the plaintiffs, in the year 1858, by means of two knowingly false representations made by the former to the latter of the means and resources of one Emil Kanter, on the faith of which the latter sold to "him merchandise amounting in value to nearly $2800, on four occasions, between the end of July a-nd the beginning of October, 1860. The fraudulent concealment by the plaintiff of Kanter’s embarrassments and indebtedness, at the time of such representation set out in the complaint, not being alleged to have been made for -any purpose of deceit, or to have had any connection with the sale, may be disregarded as being any part of the cause of action.

The first of such representations was by letter, written in German, received by the plaintiffs in March, 1858. It announced a transfer, by the defendant, of “ Ms business with debits and credits” to Kanter, who was his brother-in-law, and had previously been his assistant for many years, who would “ continue the same with, (what is translated,) undiminished means,” under the firm of Emil Kanter, successor to the defendant. The latter requests the plaintiffs to “ extend the same confidence to his successor” they had hitherto reposed in him. In the beginning of June following, one of the plaintiffs, in an interview with the defendant, wanted him to interpret the meaning of the expression of (such) his letter “ undiminished (or unweakened) means,” in answer to which, he said “ that he himself being a man of property and purposing to live in Europe thenceforth, had given up his business to his brother-in-law ; that in fact, the concern would remain altogether the same, with an alteration in the firm.” At the time of making such representations, Kanter was indebted to the defendant for the whole purchase .money of the greater part of his stock of goods bought on credit, and two thousand dollars for a loan of money, having no other means but such goods’ and borrowed money. In July, 1858, the plaintiffs sold Kanter considerable merchandise at six months credit, and also on six other occasions, between that and June, 1859; all of which were paid for by the middle of March, 1860. In the year 1860, they again sold him, in like manner, merchandise, about' the end of July. After receiving a letter from the defendant, dated in the middle of that month (July,) wherein he ordered certain goods for Kanter, and stated, as regards the condition, you will receive payments from Emil Kanter, in six months from the date of the invoice, by three months’ drafts on Hamburg, punctually. I hope you will be satisfied by it, as Mr. Kanter has received the same conditions from all his other European friends.” The plaintiffs also sold to Kanter other merchandise, on three occasions, in 1860, before the middle of October, but have received no payment for .any goods sold in that year. They received a letter in May, 1861, dated on the eighth of that month, from the defendant, in answer to one addressed by them to Kanter, demanding payment, in which the defendant stated that Kanter would be able to pay their debt in full, if they allowed him another year’s credit. On the eighteenth of the sanie month, the defendant took from Kanter a chattel mortgage on all his stock in trade, to secure the payment of nearly $2800, claimed to be the amount due to the former by the latter, for the purchase of his stock in trade and moneys loaned. After taking possession of such goods, and selling $6500 worth of them, the residue were worth less than the residue claimed by the defendant. - Judgments having been obtained against Kanter, his assets passed into the hands of a receiver.

In cases of this kind the plaintiff is bound to establish both a design to practice a deceit and reliance upon the means used to carry on such design as an inciting cause to the credit given. There must always be a limit to the period of time before a credit given within which a false representation made could not be given in evidence to establish an intent to accomplish such deceit, or the giving of the credit on the faith of its statement. The determination of that limit, where there are no other circumstances to fix it., but tile representation and the credit cannot be .left to the varying impression of juries in each case, but must be adjusted by rules of law., It is easy to specify a limit as a maximum beyond which a representation could not be given in evidence to establish a deceit by its means. The difficulty lies in fixing the minimum, and there may always be a debatable ground in which the question becomes one of fact. In this case, the representation was made in March, 1858, and the credit given in July, 1860, being two years and four months afterwards. Had nothing else intervened, it would be difficult to say that the former was admissible in evidence as the intended cause of the latter. Without inquiry, or further information, the plaintiffs, as persons of ordinary prudence, could not be presumed to have believed that the circumstances of a party would necessarily remain the same all that time. In Zabriskie v. Smith, (13 N. Y. Rep. 322,) a lapse of seven months between a representation and á credit was held too short for any presumption, as matter of'law, that the former was not the cause of the latter, and the question was left to the jury. But the time in this case is quadruple of that in the case just cited, and it therefore does not furnish a decisive standard.

In this case, however, after a continuance of dealings between the plaintiffs and Kan ter, until March, 1860, the defendant, in July following,'again intervenes, acting as Kan ter’s agent, .but personally promising the punctual payment by the latter-of his new indebtedness at the end of a proposed credit-. This must be sufficient evidence of the continuation of the impression of the entire representations down to the time of such new negotiation, or its revival, to allow it and them to go to the jury, on the question whether the plaintiffs were influenced, however slightly, by them in such sale in 1860. The conduct of the defendant and his relations with Kanter, was also sufficient prima facie evidence to be passed upon by the jury of the knowledge by the former of the dealings between the latter and the plaintiffs. Knowing such dealings, he was bound also to. know that such a letter as he then wrote was likely to renew or keep alive the impression of his first representations and induce the plaintiffs to recur to them in giving a new credit. Reiterated assurances of a person’s solvency, in whatever form given, and at whatever intervals, provided the first have not entirely been forgotten, have a tendency to deepen the fading impression, and even if it-has quite been forgotten, to revive it, unless after a great lapse of time. Such was this case, and it should have been left to the jury to say whether the early representations had no influence in inducing the later sales. Such- a case is entirely different from credit given long after a representation of pecuniary ability. In sqph case the possibility of a change of -them would be such as to prevent any prudent man from relying upon such old representations, or trusting without a new inquiry.

It does not matter in this case that possibly the previous punctual discharge of his indebtedness by Kanter, or the new representation by the defendant of his ability to pay punctually, may have had a greater weight with them ; it would still be a question for the jury whether the influence of the first representations so continued or renewed, tended, under the circumstances, to induce the plaintiffs to sell to Kanter" in 1860 the merchandise in question.

The representation made -by the defendant in 1858 was not merely generally of Kanter’s solvency of responsibility ; it was special. Afler announcinghis purchase of the defendant’s stock, good will and debts, the defendant proceeded to say that he would carry on the business with undiminished means, and requested the plaintiffs to exhibit the same confidence in him as in himself. He was designated, too, as the plaintiff’s successor in the firm name adopted. Could stronger language be used to express the substitution of Kanter for the defendant, with the same resources ? To prevent any misapprehension, the defendant, upon being interrogated, stated in the most emphatic language, “ that there was to be no alteration except in the firm.” The possession of an old .stock of goods and of borrowed money, for which he owed, certainly did not bear out this statement. Whatever, therefore, might have been the cause of Kanter’s insolvency afterwards, and whether the defendant was instrumental in it or not, he was responsible for the truth of his representations, if he intended to, and did, procure credit for Kanter by their means.

The representations were not a letter of credit for a single transaction; they were operative as to all future purchases which they enabled Kanter to make ; and the first payments may have been made as part of a system to lull the plaintiffs into false security. And prima facie evidence of the defendant’s purpose may be found in his intermeddling in Kanter’s business, brushing up his credit in 1860, and sweeping away liis wliole stock of goods within a year afterwards, for part of his claim.

I concur, therefore, in thinking the case was - improperly withdrawn from the jury, and that a new trial should be had.


source: Caselaw Access Project

author: Garvin, J.

license: Public Domain

text:
    Sarah A. Topping, plaintiff and respondent, vs. James Lynch, sheriff, &c. defendant and appellant.
    1. The question whether a sale-of property was made with the intent to hinder, delay or defraud creditors, is a question of fact for the jury, and not a question of law.
    / 2. Whether there was an actual and continued change of possession of 'the property sold, is a question of fact for the jury; and if there is no such change of possession, the presumption of law is that the sale was fraudulent and void.
    3. The words “ actual and continued,” in the statute of frauds, are applied to the change of possession. They mean an open, public change of possession which is to continue and be manifested continually by outward and visible signs, such as render it evident that the possession of the judgment debtor has ceased. He must cease from his apparent as well as real ownership:
    4. It is erroneous for the judge to charge that the circumstances proved show a change of possession, and a continued change of possession; or that the payment of money to the-alleged purchaser, on account of the proceeds of sales of the goods, is sufficient evidence that the property was in the possession of such purchaser,- and remained in his possession.
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard October 10, 1864;
    decided December 16, 1864.
    . Appeal from a judgment 'entered upon the verdict of a jury, and from an order denying a motion for a new trial.
    The plaintiff brought replevin for a quantity of groceries which she alleged she was pn the 24th day of December, 1862, “possessed of in her own right,” at the store No. 50 West street, of the value of $1000. The answer put in issue the allegations of the complaint, and justified under two executions based upon judgments rendered in a district court in favor of Thomas W. Fitzgerald against George Prentice, one of which' judgments was recovered September 23, 1862, and the other December 18, 1862. The answer averred property in Prentice. On the trial the plaintiff produced a bill of sale of the stock in trade of the store 50 West street, executed to her by the debtor, Prentice, and dated, September 2, 1862.
    The consideration expressed was $1500. The case- showed that in May, 1862, Prentice, then nineteen years of age, received of the plaintiff $1700; that the plaintiff “let him have this money to start business with as capital”—he had no money previously—he started business at the corner of Hudson and Laight streets about June, 1862. It was for rent of these premises that the judgments, under which the sheriff justified were recovered. After Prentice had been sued in September, 1862, in the action in which the first judgment was recovered, or when he expected to be sued, he went to the plaintiff and told her he expected to be sued, that he wanted to go on with business, and did not want to have his things seized. He told her he would like to go on with business if he could arrange it; “he wanted to fix it so that the sheriff could not touch the property;” he thought in the spring lie would get along better. To all this arrangement and purpose the plaintiff assented, with full notice. The plaintiff and Prentice went to the lawyer’s office to have the bill of sale drawn, and at the same time that the bill of sale, was given, Prentice received from his aunt (the plaintiff) a power of attorney to go on with the business ; and an agreement was made between the plaintiff and Prentice at the time the bill of sale was executed, that Prentice should go on and keep the store, buy and sell goods, and have one half of the profits; he was to pay the expenses out of the store, hire the clerk, and pay the rent out of the store, and have one half of the profits, after the expenses were paid. The plaintiff held Prentice’s note for the money she advanced him, but did not surrender it when she received the bill of sale, nor pay any present consideration.
    The action was tried before a justice of this court and a jury.
    The jury rendered a verdict for the plaintiff, and from the judgment entered thereon, the defendant appealed.

      A. J. Vanderpoel, for the appellant.

      L. B. Peet, for the respondent.
   By the Court,

Garvin, J.

The evidence in this case presented two questions of fact for the jury: 1. Whether the sale of the judgment debtor to the plaintiff was made by him with the intent to hinder, delay or defraud his creditors. 2; Whether there was an actual and continued change of possession of the things sold-by Prentice to the plaintiff in this action. It is contended by the defendant that neither of these questions was presented to the jury, but that the court took them from their consideration. The defendant requested the court to charge, “if the jury find that the sale and transfer made by the vendor, to the plaintiff, was made with the intent to hinder, delay or defraud the creditors of the vendor, the same is fraudulent afid void, and the defendant is entitled to a verdict.” The court charged, “ This is true, with this modifications . if -the transaction between the parties was designed to be a sale by one and a purchase by the other in payment of a debt to the plaintiff, in part or in whole, in good faith, which Prentice, the vendor, owed to the plaintiff,- then there is no fraud in the case; no intention on the part of the vendor to defraud, hinder, or delay his creditors.” To this the defendant excepted. Whether this sale was made with a fraudulent intent was for the jury to find solely upon all the facts disclosed by the evidence. It may be said that the use of the words “ good faith ” make it in substance the same as the request. This part of the charge is of such a character as to hardly submit the question of fraudulent intent to the jury. The rule is unqualified that the question of fraudulent intent shall be deemed a question of fact for the jury, and not of law. We think the learned judge erred in qualifying the rule—which has for wise purposes been incorporated into the statutes. There are no adjudications which authorize the qualification suggested in a transaction so open to criticism as the conceded facts in this case disclose. It was proved upon the trial that the judgment debtor owed the plaintiff; that in September, 1862, about the time suits were commenced against Prentice by his creditors, judgments recovered and executions issued and levied upon the property in question, the judgment debtor went to the plaintiff and told her he expected to be sued, did not wish to have his things seized ; wished to go on with business if he could arrange it; he wanted to fix it so that the sheriff could not touch his property, and thought in the spring he would get along better. This was before the bill of sale, which was dated September 2, 1862. After the sale, the goods remained in the same store as before. Prentice did all the business, both in buying and selling, and was the nephew of the plaintiff. The lease was not changed—no sign put up to indicate a change—his notes taken for the loans were not given up; he had a power of attorney from the plaintiff to go on with the business. The plaintiff went into the store and said she took possession, in the presence of the clerk, and was there occasionally. The same clerk who served Prentice before the sale, continued in the store, and had charge of the key to the store, as he had before. Upon these facts the defendant requested the court to charge the jury that where there was no actual and continued change of possession of the things sold, the presumption of law is that the sale is fraudulent and void. This was refused, and the court charged, “that the circumstances as detailed show, I think, that there was a change of possession and a continued change of possession. She was in the building, and the goods must be presumed to be within her sight, and that, if true, was taking actual possession. She told a bystander (the clerk in the store) that she took possession of all the goods. The evidence is, if you believe it, that Prentice paid her on account of the proceeds of sales made by him $150. That, I think, is sufficient evidence, if it is entitled to credit, that the property was in the possession of the plaintiff and remained in her possession.” To this part of the charge and refusal to charge the defendant excepted. It was a pure question of fact for the jury as to whether there was an actual and continued change of possession of the things sold, and the rule of law was correctly stated in the request. The words “actual and continued” are applied to the change of possession. They mean an open, public change of possession which is to continue and be manifested continually by outward and visible signs, such as render it evident that the possession of the judgment debtor has ceased. He must cease from the apparent as well as real ownership. (Camp v. Camp, 2 Hill, 628. Randall v. Parker, 3 Sandf. 73.) The defendant contended the change, of possession was constructive and secret, "not actual and visible. If this was so, it was the duty of the plaintiff to show that the sale was made to her in good faith, without any intent to defraud his creditors. (2 R. S. 141, § 5.) It was most clearly erroneous to charge that the circumstances proved show a change of possession and a continued change of ..possession. This was taking the question of fact from the jury. It was saying here is a change of possession. It certainly cannot he claimed that a mere declaration by a vendee, made to others, in regard to things bought and sold is of such a character as to be conclusive evidence of an actual and continued change of possession of the things sold. This would open the door to the very mischiefs the statute was intended to prevent.

Nothing can be clearer than that it was error to charge that the payment of $150 on account of the proceeds of the sales is sufficient evidence that the property was in the possession of the plaintiff and remained in her possession. The court did not say it tends to prove the change of possession and its continuance, but that it is sufficient evidence thereof. It may have been true as a matter of fact, that the money was paid out of the proceeds of sales ; and yet, to say the most, it was only evidence for the jury to consider in passing upon the question of an actual and continued change of possession. It may have been true that the plaintiff declared herself in possession. .She might have received the $150; also taken the bill of sale; and yet all have been an arrangement to prevent the sheriff from seizing the property, such as the judgment debtor had told the plaintiff lie wished to make. These were all questions of fact for the jury, which were taken from them by the charge of the court.

The j udgment should be reversed, and a new. trial ordered, with costs to abide the event.


author: Robertson, Ch. J.

text:
    Jeremiah Towle, plaintiff and appellant, vs. Isaac C. Smith and Ichabod T. Williams, defendants and respondents.
    1. A condition, in a grant of land by the corporation of the city of New York, that the grant shall be void in case it shall at any time afterwards appear that the grantee was not seised of an estate in fee simple absolute to the eastward of the lands so granted, is a condition subsequent, and does not defeat the estate, unless proceedings are taken by the corporation for that puipose.
    2. Such a grant is subject to the condition contained in a grant of the same lands, from the state to the corporation of the city, that in every grant by the latter, the owner of the adjacent upland shall llave a preference.
    3. There is a marked distinction in the object of statutes which avoid a particular provision in an instrument, and -that of those which avoid a whole instrument on account of the illegality of the purpose of a part. In the former case, such provision is made void as a matter of policy as to it alone; in the latter, the whole instrument is looked upon as an engine of fraud or other violation of the statute, in which the valid and invalid parts arc inseparable.

      4. The statute making void grants of land held adversely, at the time, by another, does not make the whole instrument void. Only tliat part which violates the law becomes inoperative.

      i 6. The statute which makes the acceptance of a grant of lands held adversely a misdemeanor, does not invalidate a grant of other lands, in the same conveyance.
    6. The amendment of section 111 of the Code of Procedure, passed in 1862, allowing the grantee of lands held adversely to bring an action in the name of his grantor, against the party in possession, repeals, by implication, the statute making the taking of a grant of land held adversely, a misdemeanor; it seems.

    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard October 11, 1864;
    decided December 16, 1864.
    This is an action to recover a strip of land on the northerly side of Twenty-fifth street, in the city of New York, forty-nine fi?et four and a half inches wide, and extending from the Eleventh avenue, westerly, about three hundred feet to the harbor commission line. The plaintiff claims, under a grant from the corporation of New York, dated November 29th, 1859, purporting to grant a strip of this width from the high-water line, near the Tenth avenue, to the harbor commission line. The defendants claim, under a prior grant, made by the corporation to the children of Thomas B. Clark, dated March 31st, 1837. This grant comprised all the land from Twenty- ' sixth to Twenty-fifth streets, and below, and extended from the high-water line to the westerly side of the Eleventh avenue, with the right of toharfuge in front. Under this latter grant, the grantees therein, and their assigns, have possessed and enjoyed the granted premises ever since, have filled up the land, made the streets and wharf, and paid the taxes. On the trial, before a- justice of this court and a jury, the plaintiff’s evidence was directed chiefly to showing that he was the proprietor of two lots on the original shore, above high water, which he claimed were opposite to the premises granted to ■ him.
    At the close of the plaintiff’s testimony, the defendant moved that the complaint be dismissed; which motion was granted, and the plaintiff appealed,

      N. Dane Ellingwood, for the appellant.
    I. There was sufficient evidence of the plaintiff’s title to the lot in controversy in this suit to go to the jury.
    1. The plaintiff,.on the trial, produced evidence of ownership in himself of lots Nos. 117 and 118, irrespective of the judgment records in the suit of Towle v. Farney, and in the suit of Towle s. Woods, which were offered by him, and ruled out by the court.
    2. He also produced in evidence a grant from the corporation of the city of New York to himself, as the owner of lots Nos. 117 and 118 ; made in conformity with the proviso contained in the statute of 1807, (see Laws relative to the city of New York, Davies’ ed. p. 434, § 15,) which grant embraces the lot in controversy in this suit.

      II, The grant from the corporation to the heirs of Mary Clark, which was produced in evidence by the defendants on the cross-examination of a witness called on the part of the plaintiff, did not impair the plaintiff’s title as previously made out by him on the trial, inasmuch as the grant in question does not embrace the lot in controversy in this suit.
    III. But supposing that the grant to the heirs of Mary Clark had embraced the lot in controversy, such grant would not have impaired the plaintiff’s title as previously made out by him on the trial, notwithstanding that such grant was of prior date to the grant made by the corporation to the plaintiff ; because :
    1. The grant to the heirs of Mary Clark was made on a condition precedent, to wit, that at the time of the making of such grant, the grantees were the owners of lots Nos. 117 and 118. It having been shown, however, that they were not such owners, the grant was void at its inception.
    As no estate vested in the grantees, except on the condition that they, at the time of the making of such grant, were the owners of the said two lots, the estate in the lots in question remained in the grantors, who might, without re-entry, make a subsequent grant thereof, notwithstanding the previous grant to the heirs of Mary Clark.,

      D. Dudley Field, for the respondent.
    I. It has been already decided by this court, in Towle v. Palmer and Smith, December, 1863, that the grant, to the children of. Thomas B. Clarke, made by the city on the 31st of March, 1837, vested in the grantees an estate in fee simple, and that the condition respecting the ownership of the upland was a condition subsequent. The city has never entered for breach of the condition, and, therefore, the estate of the grantees remains undisturbed.
    II. While the grant to Clark’s children remained in force, a grant of the same premises to another vested no estate, legal or equitable, in the new grantee. This, also, was decided in Towle v. Palmer and Smith, (1 Rob. 437.)

      III. Though the grant to Towle included not only the lands covered by the grant to Clark’s children, but other lands beyond, and among these, the lots in controversy in this action, it did not operate to pass the title to these lots, for the following reasons :
    . 1. The lands embraced in the grant were in the possession of the grantees therein, adversely to all the world, when the second grant was made conveying in part the same lands. The statute makes the second grant void for this reason. The language of the act is that “ every grant of lands shall be absolutely void, if, at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of grantor.” (1 R. S. 739, § 147.) The grant thus made void by statute, cannot be bad in part and good in part. (See also 2 R. S. 691, § 5.) If any * * * person shall take any conveyance, &c. knowing * * * that the grantees are not in possession of such lands or tenements, he shall, upon conviction, be deemed guilty of a misdemeanor.” The plaintiff took the grant from the corporation, knowing that a large part of the property was adversely possessed. Hence, he cannot claim under it. (Co. Litt. C. 3, p. 347, 701. Hay v. Cumberland, 25 Barb. 594.) That the possession of Clarke’s children was adverse to the city, and all the world, see People v. Trinity Church, (22 N. Y. Rep. 44.)
    2. The first grant passed the wharf and wharfage, which would be entirely cut off if the second grant were to take effect.
    IV. The act of April, 1837, confirmed the grant previously made, and gave to the grantees therein an estate in the land under water, outside of the wharf. The corporation either took no title at all in the land under water, outside of the wharf, or, if the title passed by force of the statute to the corporation, it remained there but for an instant, and passed on to the previous grantees. This results from the language of the act of 1837, as well as from the language of the statute of uses and trusts. (1 R. S. 727, § 47.)
    The effect of the act of 1837 is very different from that of the previous acts.
   By the Court,

Robertson, Ch. J.

The defense in this case rests solely on a possesory title to the premises in question. The complaint rivers such possession by the defendants, which' the latter admit in their answer, but claim it to have been adverse to all the world for twenty years. Of course their right to dismiss the complaint depends solely upon the weakness of the plaintiff’s title. The plaintiff’s claim to such premises depends wholly upon a grant of them to him by the corporation of the city of New York, in the year 1859. Á strip of land to the eastward of the Eleventh avenue was also included in such grant, which had been previously granted to the heirs of Mrs. M. Clarke in the year 1837, by the same corporation. Such grantees entered into possession of the strip and held it at the time of the grant to the plaintiff. Such grant to the plaintiff was subject to a condition to be void in case it should at any time afterwards appear that he was not seized of an estate in fee simple absolute of the lands to the eastward of the lands so granted.

This court has held that a condition similar to that in the grant to the plaintiff was a condition subsequent, and did not defeat the estate unless proceedings were taken by the corporation for the purpose. (Towle v. Smith, December 5, 1863, Gen. Term., MS.) So that it was not necessary for the plaintiff to establish any title to land lying eastwardly from the premises in question.

The grant to the heir's of Mrs. Clarke of land lying to the eastward of that in controversy was subject to a similar condition as that contained in the grant to the plaintiff; which is also to be considered a condition subsequent. Both it and the grant to the plaintiff were, of course, subject to the condition contained in the grant from the state to the corporation of the city of New York, that in every grant by the latter the owner of the adjacent upland should have a preference. (Val. ed. Laws relating to city of New York, 809, § 15, 843, § 4.)

The defendants claimed that the possession of Mrs. Clarke’s heirs of land to the eastward of that in controversy, was adverse even as against the city corporation, by virtue of the grant by the latter to them ; and that if so, the entire grant of land to the plaintiff before mentioned was void, under the statute which makes grants of land held adversely by another void, (1 R. S. 739; § 147,) and that which makes their acceptance a misdemeanor. (2 R. S. 692, § 6.)

To maintain the first of the propositions thé statute in question (1 R. S. 739, § 147) must be construed to render void the whole instrument in which a grant of any land held adversely is contained, and not merely the grant of such land. There is a marked distinction in the object of statutes which avoid a particular provision in an instrument, and tliat of those which avoid a whole instrument on account of the illegality of the purpose of part. In the former case, such provision is made void as a matter of policy to it alone ; in the latter, the whole instrument is looked upon as an engine of fraud or other violation of the statute, in which the valid and invalid parts are not to be separated. Such distinction is fully discussed and recognized by Justice Comstock in Curtis v. Leavitt, (15 N. R. Rep. 123, and cases cited.) See also Leavitt v. Palmer, (3 N. Y. Rep. 37,) in reference to the provision of the statute of frauds, (2 R. S. 135, § 1,) which makes all “ deeds of gift, conveyances, transfers and assignments ” of a certain kind void, which he held only made void what was contained in the instrument under consideration, which contravened the statute. The English case of Doe v. Pitcher, (6 Taunt. 363,) cited by the learned judge, just named, in delivering his opinion, is strongly in point. In that case the statute under consideration expressly avoided “all assurances,” &c. of a certain kind, I" had occasion recently in a case at general term, (Towle v. Palmer, 1 Rob. 437,) to consider the distinction before mentioned. Upon more full review of the principles and authoritiies I am content' to follow the principle there laid down, and hold that as the statute in reference to grants of lands held adversely does not make the whole instrument void, only that part becomes inoperative whish violates the law.

In reference to the statute which makes the acceptance of a grant of lands held adversely a misdemeanor, (2 R. S. 691,) I apprehend it does not invalidate the grant of other lands in the same conveyance. The grantor could not reclaim the other lands so conveyed, or even that held adversely. (Jackson v. Demont, 9 John. 55. Livingston v. Proseus, 2 Hill, 526. Kenada v. Gardner, 3 Barb. 589. Poor v. Horton, 15 id. 485.) In Van Dyck v. Van Beuren, (1 John. 345,) the separability of the legal from the illegal grant is conceded. The fifth section of such statute only applies to lands the subject of an existing-suit, and is of course inapplicable to the grant under consideration. The sixth section forbids buying or selling pretended titles to land “ unless the grantor, &c. shajl have been in possession of * its reversion * or have taken the profits for a year previously.” A quit rent was reserved and payable to the city corporation by the grant to Mrs. Clarke. The statute of course could only extend to cases where profits were not payable, and not where they were not paid. Moreover the right of the city corporation to re-enter for the condition subsequent probably deprived the possession of the heirs of Mrs. Clarke of the character of being adverse to the corporation, under the cases of Webb v. Bindon, (21 Wend. 98,) Preston v. Hunt, (7 id. 53,) and Hassenfrats v. Kelly, (13 John. 466,) notwithstanding the principles laid down in The People &c. v. Trinity Church, (22 N. Y. Rep. 44;) The same v. Van Rensselaer, (8 Barb. 189,) and Pepper v. Haight, (20 id. 429.) The evidence in this case, therefore, would not be sufficient to have convicted the plaintiff of a misdemeanor, and consequently could not have avoided the deed to him.

A statute recently passed (1862) allows the grantee of lands held adversely to bring an action in the name of his grantor against the party in possession. (Code, § 111, 2d paragraph.) This would seem to repeal by implication the statute making the taking of such conveyances hereafter a misdemeanor.

The plaintiff therefore established a good title as against the defendants, and the dismissal of the complaint was improper. The judgment and order denying a new trial must be reversed and a new trial granted, with costs to abide the event.


text:
    George B. Morewood et al. plaintiffs, vs. James C. Jewett et al. defendants.
    1. Where, from the language employed in the commencement and conclusion of an award it clearly appears that the award was made concerning the matters submitted, it will be" presumed that the arbitrator did his duty, until it is provéd that he neglected or refused to decide all the matters brought before him.
    2. If the arbitrator does not state in his award, that he has not taken a particular claim into account, and there is no proof on the subject, the award, if it .does not expressly allow the claim, must be construed as a decision to reject it.
    3. Corrupt misconduct in an arbitrator is not a proper subject of inquiry, in au action upon the award.

      4. Each party to an. arbitratioh is entitled to an opportunity to be heard, in the presence of the other, and to have reasonable time to produce his witnesses and examine them, unless there be something in the terms qf the agreement of submission, or statements of the parties expressing or clearly implying a different understanding.
    5. All presumptions and intendments are in favor of an award. In an action upon it the defendant must point distinctly to the grounds impeaching it, in his answer, and he is confined to those there specified.
    6. If the defendants, in their answer, admit the award, but say it is void, they are bound to point out therein wherein it is void; otherwise evidence impeaching the award would be outside the issue.
    (Before Robertson, Ch. J. and Monell and Garvin, JJ.)
    Heard October 12, 1864;
    decided December 16, 1864.
    This was an action brought upon an award made between the parties by. Benjamin A. Mumford. The complaint sets out the award, and claims the amount awarded with interest. The answer claims that the award is void in law. The action was tried on December 8,1863, before Justice Monell and a jury. At the close of the evidence the presiding justice directed the jury to find a verdict in favor of the plaintiffs for the amount claimed to be due on the award with interest. The defendants’ counsel excepted to this direction. The defendants’ counsel also took various exceptions during the progress of the trial. The court ordered the exceptions to be heard in the first place at the general term, and that judgment be ip the meantime suspended.

      Spear & Nash, for the plaintiffs.

      D. & H. C. Marvin, for the defendants.
   By the Court,

Garvin, J.

This was an action brought by the plaintiffs to recover of the defendants $1502.32 with interest from August 16, 1862, claimed to be due on a charter of the barque Sophia, by the defendants and awarded to the plaintiffs by Benjamin A. Mumford, Esq. who was an arbiter chosen by the parties, who made an award in favor of the plaintiffs and against the defendants for $1502.32. At the trial the court directed the jury to find a verdict for the plaintiffs, and ordered the exceptions to be heard in the first instance at the general term, and that in the meantime the judgment be suspended. The verdict was for $1640.20.

The parties to this action selected their own tribunal for the adjustment of their differences. The submission seems to be pretty clearly established, and that both parties put before the arbitrator statements in regard to their respective claims. The arbitrator made his award, of which the defendants had notice.

There are several objections and exceptions taken by the defendants on the trial to the award and the plaintiffs’ right to recover thereon. The first is that the award is void, because it omits to pass upon all the matters submitted; and the particular matter alleged to have been omitted is a claim for allowance for some thirty three tons of merchandise which they desired to ship in place of powder taken from the vessel by order* of the government. It is. true that the arbitrator does not mention this claim in the award; nor was it necessary he should do so, provided his decision embraced it. The result in this case disposed of all the matters submitted. The arbitrator recites that he has “read the statements of the parties, and the exhibits presented by each, and heard their verbal statements. I therefore give as my opinion and do hereby award,” &c. In going over several facts in the case he does not méntion it. His reasons for thus rejecting it we cannot inquire into. The arbitrator gives a result. The award would have been entirely valid if he had simply awarded a sum of money, without assigning any reason therefor. It is quite clear that this award was made of and concerning the matters submitted, from the language employed in its commencement and termination, and therefore it must be presumed that he did his duty, until it is proved that he neglected or refused to decide upon all the matters put before him. (Ott v. Schroeppel, 1 Seld. 482, and cases there cited.) If the arbitrator had stated in his award that he had not taken this claim into account, then it would have presented a different question, Without such a statement, and in the absence of any proof upon the subject, we must construe the award as a decision to reject this claim of the defendants.

Again: it is said the arbitrator undertook to pass upon a claim which the defendants did not make. The claim not having been made and not having been allowed or used to increase or diminish the defendants’ claims, but rejected, it leave's the defendants in the same position as if he had not passed upon it.

It is claimed that the conduct of the arbitrator was grossly partial. Even if he had been guilty of corrupt misconduct it would not be a competent inquiry in an action upon the award. (Dater v. Wellington, 1 Hill, 320.)

It is further insisted, that the defendants did not have notice of the time and place of meeting before the arbitrator. It is a rule of law, that each party must have an opportunity to be heard, in the presence of each other, and have reasonable time to bring forward their witnesses, and examine them in the presence of the parties, unless there be something in the terms of the agreement, of submission, or statement of -the parties declaring or clearly importing a different understanding.

The defendants say, in their statement of facts submitted to the arbitrator, “ If there is any doubt on the matter of the powder, of the government’s intervention without notice, of our having shipped powder before without objection on the part of the government, or our liability op this point, we desire to be head'd f urther.”

There is no statement in the award indicating that there was “ any doubt” in the mind of the arbitrator about the powder, or upon any of the subjects mentioned in the defendants’ statement upon which they desired to be heard. The defendants, it would seem, intended to convey the idea to the arbitrator that unless there were doubts in his mind upon these particular points, they did not wish, to be heard any further after they had put in the statement of their claims. The defendants had notice from the arbitrator of the hearing, and appeared; the plaintiffs also appeared ; both statements were submitted; no witnesses were produced on the part of the plaintiffs, and nothing was said in regard to witnesses by them. The defendant Jewett testifies, that he spoke of calling witnesses in regard to the powder, and of calling witnesses generally in regard to the claim of the defendants. There can be no doubt, from the conduct of both parties, the action of the arbitrator, and the written statement of the defendants, that the original intention of the parties was to submit their respective statements to the arbitrator, and abide his decision' thereon without witnesses. It is also to be remembered, that the neglect or' refusal of the arbitrator to hear witnésses for the defendants, is not set up in the answer. Several grounds are enumerated in the answer impeaching the award, but this is not among them. We are of opinion that this ground, not having been taken in the answer, could not be taken at the trial, and is not available now. All presumptions and intendments are in favor of the award. The defendants must point to the grounds impeaching it in their answer, and they are confined to those; otherwise, the other party has no notice of what he is to meet and controvert. To meet the case made in the plaintiffs’ complaint by uew matter constituting a defense, it must be set forth, plainly in the answer. (Code, § 49, sub. 2.) The defendants, in their answer, admit the award, but say it is void. It devolves upon the defendants to point out wherein. This must be*done in the answer, otherwise evidence impeaching the award would be outside the issue. The submission in this case was not under the statute, and left the parties at liberty to proceed as they should deem proper, without the power, however, in the court to enforce, modify, vacate, or correct the award in the manner pointed out by the statute. (2 R. S. 541.) It was a common law submission, which they- had a right to resort to. (15 Wend. 99. 2 Hill, 271.) The parties cannot have the aid of the statute, not having conformed to its provisions. We have looked in vain for any exception or ground of objection which would authorize us to interfere for the defendants, and must hold that the plaintiff is entitled to an order for judgment upon the verdict in this action, and that the exceptions, on the part of the defendants, are not well taken, and must be overruled, with costs.


text:
    Matilda C. Gray, administratrix, &c. of Franklin C. Gray, , deceased, plaintiff and appellant, vs. Joseph C. Palmer, defendant and respondent.
    1. A complaint alleged that the defendant obtained from the plaintiff her indorsement upon a treasury draft, by certain false and fraudulent statements, to wit: that he would not take the proceeds of the draft to Qalifornia, but that after paying certain claims, he would immediately return the remainder of the pro? ceeds to the plaintiff, and would advise her how to invest the same, &c. jHeld that such statements being merely promises for future conduct, and not representations of existing facts, were not of such a character as to make the defend- ' ant responsible, in an action for fraud in procuring the plaintiff’s indorsement upon the draft.
    2. To be actionable, representations mpst be of some fact alleged to exist at the time, and be made for the purpose of inducing the other party to do or part with something.
    8, In an action of that nature, the plaintiff is confined to proof of the facts alleged in the complaint.
    4. Whatever objections to a complaint a defendant, by answering, waives, he does nqt waive the objection that it does not state facts sufficient to constitute a cause of action.
    6. Where a drift, together with the proceeds thereof, comes lawfully into the possession of another, this bars a recovery, for either, in an action for fraud in obtaining the draft, or tort for the conversion of the proceeds.
    6. Where the plaintiff having an election to charge one of two parties with a debt, in the alternative, charges one of them by eommmencing an action and recovering a judgment against him, the other is discharged. Having made his election, the plaintiff must abide by it.
    (Before Robertson, Ch. J., Monell and Garvin, JJ.)
    Heard October 12, 1864;
    decided December 16, 1864.
    This action was brought to recover damages for the conversion by the defendant, of a draft of the treasurer of the United States, for §5850. The plaintiff alleged in her complaint that the draft was part of the intestate’s estate, and by special authority was made payable to the order of herself and John Cook, Jr. her then co-administrator. She then alleged that in August, 1855, the defendant, for the purpose of defrauding her, requested her to entrust the draft to him for collection, he promising to pay over to her the amount, after deducting certain claims of other persons for services in procuring the draft from the United States. That relying upon such promise she indorsed the. draft, and delivered it to- the defendant, who collected the amount, and converted the same to his own use. There are other allegations of a fraudulent design on the part of the defendant to obtain the draft, and of false and •fraudulent representations, which, relying upon their truth, induced the plaintiff to part with the draft.
    The answer, after denying that the draft belonged to the estate of the decedent, or that it came into the possession of the plaintiff, as a part of the estate, avers that the decedent was formerly a resident of the state of California, where he acquired an interest, with others, in a claim against the United States ; that the claim was sent to the city of Washington for payment, and while the settlement thereof was pending, the decedent came to the Atlantic states, where he soon afterward died. That the decedent left in California a considerable real and personal estate, and that the defendant and one Cornelius J. Eaton were duly appointed administrators by the Probate Court of said state of California. The defendant claims to hold the proceeds of said draft as such administrator averring that it constituted a part of the estate of said decedent, upon which he was authorized to administer. The defendant denies the allegation of fraudulent design on his part, and avers that the indorsement of the draft by the plaintiff was for the convenience of obtaining the money thereon. The defendant further alleges, that for the purpose of collecting the draft, he delivered it to John Cook, Jr. for collection, and that said Cook collected the same. For a further defense the defendant alleges that the decedent, in his lifetime, and at the time of his death, was a copartner of said Cornelius J. Eaton and one 'William H. Gray, and that one half of said claim against the United States belonged to said firm, and that said draft was part of the assets thereof; that actions were commenced against the administrator as the- surviving member of said firm, in one of the courts of California, which by its judgment after declaring the rights and interests of the partners, adjudged that the defendant should pay to the said surviving parties, their proportion •of the assets of said firm, in the hands of the defendant as such administrator, and that the defendant has complied with such judgment; and for a further defense the defendant alleges that as administrator, appointed in the state of California, he has accounted, (at which accountings the plaintiff was represented,) wherein and whereby the defendant was charged with the amount of said draft. And for a further defense the defendant alleges that on the same day he received said draft from the plaintiff, he delivered it to John Cook, Jr. who collected the samé, and placed the proceeds to the credit of Palmer, Cook & Co., of which firm said Cook was a member, and that thereafter the plaintiff, as administrator, prosecuted said Cook, to recover the amount collected by him upon said draft, and obtained judgment therein for the amount so collected.
    The action was tried before a justice of this court and a jury. When the plaintiff rested, the defendant moved for a dismissal' of the complaint on the grounds :
    1. That the action could not be sustained upon the allegations in the complaint and the evidence.
    2. That the plaintiff is estopped by the record of the judgment against Cook.
    The motion was granted, and the plaintiff excepted.

      Judgment of dismissal having heen entered, the plaintiff appealed.

      Philip G. Galpin, for the plaintiff and appellant.

      A. J. Vanderpoel, for the defendant and respondent.
   By the Court,

Garvin, J.

It is alleged and set forth in the complaint, that the defendant, by means of certain false and fraudulent representations, with intent to cheat and defraud the plaintiff, obtained her indorsement upon a certain draft drawn by the treasurer of the United States, for the sum of $5850, belonging to the estate of F. C. Gray, deceased, and payable to the joint order of the plaintiff, as administratrix, and John Cook, Jr. administrator, as representatives of the deceased. The false representations stated in the complaint are : “ That he had no intention of taking, and would not take the proceeds of said draft to California, but assured the plaintiff upon his' word of honor, that after paying off the claims or liens upon said fund or claim or draft, at Washington, he would immediately return the remainder of the proceeds of said draft to the plaintiff, and would advise the plaintiff how to invest the same; that he wanted the plaintiff to indorse said draft to enable him, the defendant, to pay off said claim or liens upon said draft or fund at Washington, and if the plaintiff undertook to settle with the claimants, they would cheat her badly.” That relying solely upon these false and fraudulent statements, the plaintiff indorsed the draft, and entrusted the same to the defendant. The plaintiff also alleges that by means of these representations she Was injured, and suffered damage. The defendant, in his answer, denied all the allegations óf the complaint, in regard! to these representations ; and set forth new matter constituting a defense. The action was brought to trial before a justice of this court and a jury. Upon the plaintiff’s case, as made by the evidence, the, complaint was dismissed upon two grounds. The first ground was that the action could not be sustained upon the allegations in the complaint and the evidence. This action being for fraud and deceit alleged to .have been practiced upon the plaintiff by the defendant, through certain false and fraudulent representations, the plaintiff was bound by all the rules of law governing such cases, to prove his case, as stated in the complaint, provided it embraced a cause of action. And, whether it did or not, she could not, upon the trial, give evidence of false and fraudulent representations that she had not complained of. If no cause of action was stated in the complaint, the same rule must prevail; so that, in either case, the plaintiff must be confined, in actions of this description, to proof of the facts alleged. By answering, the defendant waives many objections to the complaint, but he does not waive 'the objection that the complaint does not state facts sufficient to constitute a cause of action. Thus the cause was presented to the court at the trial. It was held by the learned judge, after hearing the evidence for the plaintiff, that the action could not be sustained upon the allegations in the complaint and the evidence. The manifest reason for this ruling was that neither the plaintiff’s pleadings or proofs made out a cause of action. It was not the fault of the pleader; doubtless, all the representations which had been made by the defendant were set forth in the complaint, and proved on the trial; but they are not sufficient upon which to base an action for fraud in procuring the indorsement of the plaintiff’s name upon the draft. To be actionable, the representation must be of some fact alleged to exist at the time, and made for the purpose of inducement. 'The representation by the defendant that he would not take the proceeds of the draft to California, and would immediately return the' remainder of the proceeds to the plaintiff, and would advise the plaintiff how to invest the same. Even if he intended, at the • time it was made, to repudiate, his promise was not of such a character as to make him responsible in this action. The other representations are of the same description. They are all promises for future conduct ; and not representations of existing facts. This view of the complaint and evidence sustains and fully accords with the first ground upon which the complaint was dismissed, and is also decisive of the main objections taken to, and rejection of evidence offered by the plaintiff. Most of the evidence offered by the plaintiff, and rejected, would have been entirely immaterial, by reason of the absence of any cause of action in the complaint. The other ground upon which the complaint was dismissed is equally conclusive against the plaintiff. Having elected by her action, to pursue Cook to a judgment for the same identical draft, and the proceeds thereof^ she cannot now look to Palmer. The plaintiff has made her election, and by it she must abide. It may not be improper to further remark that the draft came lawfully into the possession of the defendant, together with the proceeds thereof, which bars a recovery for either in an action for fraud in obtaining the draft, or tort for the conversion of the proceeds.. The complaint was properly'dismissed; and the judgment should be affirmed, with costs.