Kline v. Baker , 106 Mass. 61 ( 1870 )

Gbay, J.

The goods replevied were sold by the plaintiff to Dore in two lots, the one upon an order inclosed in a letter from the plaintiff’s travelling agent Sheble, dated June 27, 1865, the other upon an order from the buyer directly, dated August 7, 1865.

The verdict for the plaintiff was returned under instructions, given at the request of the defendant, that by the law of Pennsylvania, where the sales were made, it would not be enough for the plaintiff, in order to rescind them, to show that the buyer purchased the goods with an intention not to pay for them, “ but the plaintiff must show some artifice intended and fitted to deceive, practised by the buyer on the seller, some materially false and fraudulent representation which induced the sales.” The only exceptions argued by the defendant are to rulings upon questions of evidence.

1. Sheble testified that the negotiations at: which the representations were made took place between himself and Burleigh, who was either a partner or the managing agent of the business of the buyer, on the 17th and 26th of June, 1865, and that the. representations had influence in inducing him to accept the order of June 27th. This evidence was clearly competent, and, taken together with the date of that order, sufficient to warrant the jury in finding (as they were required by the instructions of the court to do before' they could return a verdict for the plaintiff) that those representations, or some of them, induced both sales, and that the orders would not have been taken by Sheble had he not believed the representations to be true. This point was directly passed upon when the case was before us at a former stage. Kline v. Baker, 99 Mass. 253.

2. The testimony of Doyle as to the time of the receipt of the goods by the buyer in Illinois, and his immediate shipment of them to the East, with' the evidence that such goods could not under such circumstances be sold at a profit, was competent upon the issue of the buyer’s fraudulent intent.

3. Even original bills signed by a seller and acknowledging the receipt of the price of goods, and original way-bills of a railroad corporation for their transportation to an alleged purchaser, would not be competent evidence against a third person claiming that the property had never passed to such seller. The copies of such receipts and way-bills (if there were no other objection to their admission) were therefore incompetent, as against the plaintiff, to prove a subsequent sale of the goods by Dore to a purchaser in good faith.

4. The rule of law as to the burden of proof is the same as in other civil cases, and was properly stated to the jury. To have instructed them in the form requested upon this point, without informing them that the only reason which might lead them to require peculiarly clear proof of fraud was the mere presumption of honest dealing, would have been quite as likely to mislead the jury as to assist them. Batch v. Bayley, 12 Cush. 27, 30. Schmidt v. New York Union Insurance Co. 1 Gray, 529. Gordon t. Parmelee, 15 Gray, 413. Young v. Makepeace, 103 Mass. 50,

5. But evidence of purchases made by Dore or his agent Burleigh from other persons, though not paid for, being unaccompanied by any evidence of fraud therein, as well as the étatements made by Burleigh to Doyle a month after the representations to the plaintiff’s agent, had no legitimate tendency to prove fraud practised upon the plaintiff, (even if the jury were already satisfied of the making and the falseness of those repre* Dentations,) and may well have prejudiced the jury in his favor Lynde v. McGregor, 13 Allen, 172, 179, 180. Horrigan v. Wright, 4 Allen, 514. Whiting v. Withington, 3 Cush. 413. Upon this ground only, the Exceptions are sustained.