Hadcock v. Osmer , 38 N.Y.S. 618 ( 1896 )

Hardin, P. J.:

After the .defendant executed the instrument wherein he stated that “ the Browns are good for what money you let them have ” it was taken by the Browns to Emmanuel Hadcock, one of the three brothers, and the loan obtained from him mentioned in the complaint. The evidence given at the trial sustains the essential allegations of fact found by the jury. The jury were instructed that, if the instrument contained a mere expression of opinion, the plaintiff could not recover. And they were instructed in respect'to the law relating to fraudulent misrepresentations, and we see no occasion to disturb their verdict on the ground that the same is not sustained by the evidence.

The charge, when considered in all its features, together with the requests of the defendant assented to, stated the law substantially as it is laid down in Kountze v. Kennedy (147 N. Y. 124) and Marsh v. Falker (40 id. 567).

(2) There is no force in the objection that the cause of action did not survive to the estate of the testator. At the close of the opinion in Brackett v. Griswold (103 N. Y. 428) Finch, J., said : “ So far as the cause of action was for a conspiracy to cheat or defraud the intestate, it was for an injury to a property right, and did not die with its owner.” A similar doctrine was laid down by the General Term of the fifth department in Moore v. McKinstry (37 Hun, 194).

(3) It was not error to receive the judgment recovered against the Browns and the execution issued thereon, and the return of the sheriff nulla bona. They were competent evidence to show the efforts made by the creditor to collect the debt of the Browns and also to establish their insolvency. (Hatch v. Spooner, 1 App. Div. 408.)

(4) We think there is no force in the contention of the defendant that the instrument executed by him and addressed to Hr. Hadcock, was presented to and acted upon by Emmanuel Hadcock instead of Benjamin. When the conversation..was held with the defendant there was a reference made to the Hadcocks without a clear specification as to which one would be able to loan the money. The defendant had suggested that perhaps the money might be borrowed, of Benjamin Hadcock. It is inferable from the evidence that the Hadcocks belonging to the same family, resided' together, and the, conversation was to the effect that" one of the Hadcocks would' be able to loan the money, .and the judge in the course of his charge said.: “If it was understood by-the defendant that there was a proposition to borrow of one or more Hadcocks, apd lie set out, a general, paper, addressed ■ to Mr. Hadcock, why then you can say whether it was not fairly intended to. ' be delivered to such person • of the family as would loan the money; and, if that is true, it is not essential that it should appear to you that it had been determined, at the time the paper was drawn, that the loan should be from one or the other. If yon find that fairly the meaning, intention and design of the parties was that whoever loaned the money should have this paper presented to him,, then.it may be fairly said that the representation was made to' whoever did loan the money of those persons.” The charge in that regard was as favorable as the defendant was entitled to.

Upon a careful inspection of the other exceptions found in the appeal book the conclusion is reached that they present no error calling for an'interference with the verdict of the jury.

Hear the close of the requests to charge the judge yielded to one,; which instructed the jury that there can be no recovery “ unless it, be proven or be found that there was ail actual purpose or intent om the part "of the defendant on the 15th day of" September, 188.8, to defraud Emmanuel Hadcock of" his property.’ To that request the judge replied, “Tes, I charge. that;and. then he added, “Of course that is in connection with what ,1 have already charged,, that it was not necessary it should have been determined when he made the paper, before they got the money, as to which of the Hadcocks it was to go to,, but there must have been an intention to cheat and defraud the person to whom this, paper should be delivered, the one, or the ótheh” ' We think the exception to the charge as given, and to the refusal of certain requests, do not present any error.

The judge seems to have delivered in the body of his charge, and. in his qualifications made subsequent to the delivery of the principal part of his charge, the law as favorable as the defendant was entb tied to have the" same delivered to the jury.

The foregoing views lead to the conclusion that the verdict should, be sustained.

All concurred, except Ward, J., not sitting.

Judgment and order affirmed, with costs.