Bugg v. Wertheimer-Schwartz Shoe Co. , 1897 Ark. LEXIS 2 ( 1897 )

Riddick, J.,

(after stating the facts.) We are of the opinion that the judgment of the circuit court should be affirmed. The circuit court did not err in refusing to allow the appellant to prove the contents of the statement made by Tilles to Rice, Stix & Co., for the particular items contained in that statement were not relevant to the points in issue. “The most important class of facts which are excluded on the ground of irrelevancy,” says Mr. Taylor in his work on Evidence, “comprises the acts and declarations either of strangers or of one of the parties to the action in his dealings with strangers. These,—which, in the technical language of the law, are denominated res inter alios actce,—it would be manifestly unjust to admit, since the conduct of one man under certain circumstances, ’ or towards certain individuals, varying as it will necessarily do according to the motives which influence him, the qualities he possesses, and his knowledge of the character of those with whom he is dealing, can never afford a safe criterion by which to judge of the behavior of another man similarly situated, or of the same man towards other persons.” 1 Taylor, Ev., § 317. The rule applies in this case. It was not competent for C. Tilles & Co., or those holding under them, to prove the declarations made by Tilles to Rice, Stix & Co. to support his testimony in this case, for these declarations did not tend to show that he had not made other and different statements to the agent of the shoe company, nor did they tend to throw any light on the matters in issue. The appellant was permitted to show by Tilles that he had made a correct statement of the financial condition of his firm to Rice, Stix & Co., and had informed Wertheimer, president of the shoe company, of this statement, and referred him to it for information concerning the firm. This was all appellant had the right to demand. Wertheimer, who testified in rebuttal for plaintiff, did not controvert the fact that Tilles had made such a statement, nor deny that it was a truthful statement, but he denied that Tilles had informed him of such statement, or that the shoe company had any knowledge of the same when it sold the goods. The declarations in this statement, whether true or false, did not tend to contradict Wertheimer, and it was not proper to support Tilles by his own declarations made to third parties. As plaintiff did not controvert either the fact that Tilles had made a statement to Rice, Stix & Co., or that it was a correct statement, a majority of the judges feel convinced that the particular items thereof were irrelevant, and no prejudice resulted from the refusal to allow proof of the same. Texas & St. L. Ry. Co. v. Donnelly, 46 Ark. 87; 1 Greenleaf, Ev., §§ 52, 448.

The instructions given by the court were not erroneous. A purchase of goods by one who at the time intends not to pay for them is such a fraud as will entitle the seller to avoid the sale, although there was no fraudulent misrepresentations or false pretenses. If such intention were known to the vendor, it seems clear that he would not sell. The suppression therefore is a legal fraud upon the rights of the vendor, and entitles him to avoid the sale. Gavin v. Armistead, 57 Ark. 574; Taylor v. Mississippi Mills, 47 ib. 247; Dow v. Sanborn, 3 Allen (Mass.), 181; Benjamin, Sales (6th Ed.), Bennett’s American note, 442; Usher on Sales, § 274.

Nor can we sustain the contention of appellant that to entitle the vendor to avoid a sale after delivery it must in all cases be shown that the vendee did not intend to pay for the goods. That is, as above stated, one ground-on which the sale may be avoided, but not the only one. If the vendee knowingly makes false representations concerning material facts, and thus induces the seller to part with his goods, the seller may elect to avoid the sale, and this without regard to whether the buyer intended to pay for the goods or not. The fraud in such a case consists in inducing the vendor to part with his goods by false statements of the buyer, known to be false when made, or made by him when he has no reasonable ground to believe that they are true. If a vendor parts with his goods on the faith of such false statements made by the buyer, it would be strange if the law permitted the buyer to reap the fruits of such conduct, and retain the goods against the will of the vendor. To illustrate, let us suppose a case. A man with no property, but with great faith in his ability as a merchant, goes to a city and calls on a wholesale merchant for the purpose of buying a stock of goods. He believes that if he can obtain a stock of goods, his experience and ability will soon enable him to pay off the purchase price, but, fearing that the merchant may refuse to sell if he learns that he has no property, he thereupon, for the purpose of obtaining the goods, states to the merchant that he has money in the bank, and owns a large amount of both real and personal property. The merchant, ignorant of the facts, and relying on the truth of these statements, parts with his goods: He afterwards discovers the fraud, and brings an action to recover the goods. In such a case would it be a valid defense for the buyer to say that, although he had secured the goods .by misrepresentation, yet he did honestly intend to pay for them? Clearly it would not. The courts would answer such a question substantially as it was answered by the Supreme Court of Connecticut when it said that the intent of the buyer to pay “may have lessened the moral turpitude of his act, but it will not suffice to antidote and neutralize an intentionally false statement which had' accomplished its object of benefiting himself and of misleading the plaintiffs to their injury.” Judd v. Weber, 55 Conn. 267; Reid v Cowduroy, 79 Iowa, 169; S. C. 18 Am. St. Rep. 359, and note; Strayhorn v. Giles, 22 Ark. 517.

Counsel for appellant contend that a different rule was announced by this court in the ease of Taylor v. Mississippi Mills, 47 Ark. 247. It is true that Mr. Justice Smith, who delivered the opinion of the court in that ease, said that “in this class of actions the final test is a preconceived intention to get the goods without paying for them;” but this expression must be taken in connection with the facts of that case and with the whole opinion. When so considered, we do not think that case is in conflict with the rule above announced. But if we should concede that these words of the learned judge were intended to convey the meaning imputed to them by counsel for appellant, still they could not affect the decision of this case, for general expressions of opinion by judges, however eminent, do not overturn well-settled rules of law.

Finding no error, the judgment is affirmed.