Gray v. Lindauer ( 1889 )

Gabt, J.

This is an action on the case. Several counts are for alleged fraud by appellants, in representing one Armstrong to be worthy of credit.

In answer to a special question, the jury have found that there was no special fraud or deceit in the representation. The last count of the declaration is, in substance, that the appellants, having chattel mortgages on the property of Armstrong, who was insolvent, and intending to defraud the appellees, induced and procured Armstrong to buy on credit, goods from the appellees, with the intent on their part, of converting them to their own use by means of the mortgages, and that the scheme was successful.

The count is very long, and is a verbose attempt to plead the evidence, which, if the appellees’ view of the law be correct, would sustain a count in trover. The count is to be taken most strongly against the pleader. This is a familiar rule. People v. Swigart, 107 Ill. 494. “In the proceedings of any court, where an accusation is preferred, the minimum of allegation is the maximum required in proof.” Denman, C. J., 5 Ad. & E. N. S. 995, Francis v. Steward. The count contains no allegation of anything done by the appellants to deceive the appellees, or of any collusion with Armstrong, or that he did not buy with an honest intention and expectation to pay for the goods.

It comes to this: can an action be maintained by one who sells on credit to an insolvent, struggling honestly but unsuccessfully to retrieve his fortunes, against a third person who expects by the exercise of his power over the insolvent, to get the benefit of the purchase, and for the purpose of realizing that expectation, persuades the insolvent to purchase, and succeeds in his expectation, and the vendor remains unpaid ?

There is no precedent for such an action. Where there has been fraud by the purchaser, participated in by the defendant, the latter has been held liable. Hill v. Perrott, 3 Taun. 274; Biddle v. Levy, 1 Stark. N. P. 20; Irving v. Motly, 7 Bing. 543. But no case holds that where the purchaser bought in good faith, and therefore acquired an indefeasible title, a third person coiild be held liable for the price the purcl laser was unable to pay, on the ground that such third person, from whatever motive, had given the purchaser unwise advice for him to follow, and the adviser had derived a profit from it. The fact that there is no precedent for such an action is a strong though not conclusive argument against it. See Smith v. Hurd, 12 Metc. 371; Cunningham v. Brown, 18 Vt. 123; Rockingham v. Bosher, 39 Me. 253; Conn. Mut. v. N. Y. & N. H., 25 Conn. 265.

It-is quite needless to review the evidence. If there had been the ordinary count in trover in the declaration, and no answer by the jury to any special question in the way, whether the evidence would support a verdict for the appellees, is not now a subject of inquiry; but the answers to the special question being, in effect, such'as confine the verdict to the last count, and that being insufficient, the court might perhaps have been technically justified under the statute in entering judgment for the appellants. The statute, however, is not imperative, but at the least, the appellants were entitled to a new trial. Many other questions in the case are left untouched. The judgment must be reversed and the cause remanded.

Heversed a/nd remanded.