Morris v. Wells , 7 N.Y.S. 61 ( 1889 )

Martin, J.

The only question relating to the findings of the referee, or to his refusal to find as requested by the plaintiffs, which we deem it necessary to examine arises upon his finding “that no false representations were made by Scoville & Roe to -the plaintiffs, upon which the plaintiffs relied, to induce the sale of the goods in question,” and upon his refusal to find “that plaintiff’s agent relied on the said statement so made by Scoville that he was personally worth six thousand dollars, and sold the bill of goods referred to in the complaint upon the strength of such representation.” The plaintiffs excepted both to the finding referred to and to the referee’s refusal to find as requested. “Exceptions to alleged findings of fact, when they are unsupported by evidence, and to refusals to find, when they are established by undisputed proof, present questions of law, and are reviewable on appeal. ” Bedlow v. Dock Co., 19 N. E. Rep. 800; Bullock v. Bemis, 3 N. Y. Supp. 390. The referee found.that the goods in question were sold b.y the plaintiffs’ agent; that at the time of the sale he made inquiries of Scoville, one of the vendees, as to the standing and responsibility of the firm and the members thereof; that Scoville stated that he was worth $6,000, and that such statement was false. The undisputed evidence was that the agent relied upon such representations in making such sale. Woolston, the plaintiffs’ agent, testified as follows: “I sold the bill of goods on the information I got from Scoville direct. The purport of it was that Scoville was individually good for six thousand dollars. * * * The conversation was to the effect that Mr. Scoville was personally worth six thousand dollars, and upon that I based my judgment in selling the goods. ” If the representations were made, and the referee has so found, then it is clear from the evidence that the plaintiffs’ agent relied upon them in making such sale, and the learned referee erred in refusing to so And, and in finding to the contrary, although the plaintiffs made other investigations as to the responsibility of such firm and its members before shipping the goods. Nor can it be said that the findings contained in the referee’s report are to control. Such is not the rule. If the findings are inconsistent, the appellants are entitled to the finding most favorable to them. Redfield v. Redfield, 110 N. Y. 671, 18 N. E. Rep. 373.

Assuming, as we must, that the referee erred in such finding and refusal to find, it follows that the judgment must be reversed, unless the error was a harmless one. The refusal of a referee to respond to a request to find is not a ground for reversal, unless such refusal was prejudicial to the appellant. In re Hieks, 14 N. Y. St. Rep. 320. While the findings of the referee and the undisputed evidence in the case establish the making of such representations, their falsity, and that they were relied upon in making such sale, still there is no finding of the referee nor conclusive evidence to the effect that such representations were known to be false when made, nor that they were made with an intent to defraud the plaintiffs; but, on the contrary, the referee refused to find that such sale was induced by the fraud of the defendant’s assignors. Before the defendant’s assignors could be found guilty of fraud, and the sale of the goods in question avoided on the ground of such representations, it was necessary to establish that the representations were known to be false by the person making them, and that they were made with an intent to defraud the plaintiffs. Meyer v. Amidon, 45 N. Y. 169; Oberlander v. Spiess, Id. 175; Hubbell v. Meigs, 50 N. Y. 480; Wakeman v. Dalley, 51 N. Y. 27; Simar v. Canaday, 53 N. Y. 298; Stitt v. Little, 63 N. Y. 427. There being no such proof or finding we do not perceive how the plaintiffs could possibly have been injured by such error, as, in the absence of such findings, the result must have been the same. Moreover, the plaintiffs submitted no request to find those facts. Porter v. Smith, 35 Hun, 118; Graff v. Ross, 47 Hun, 152. Our conclusion is that this error of the referee was harmless, and lienee would not justify a reversal of the judgment.

On the trial the plaintiffs attempted to prove the declarations of one of the defendant’s assignors, made at various times before the assignment. This evidence was objected to by the defendant. The objection was sustained, and the plaintiffs excepted. The plaintiffs contend that the referee erred in excluding that evidence. We think the ruling of the referee was justified by the authorities. Truax v. Slater, 86 N. Y. 630; Bullis v. Montgomery, 50 N. Y. 352; Vidnard v. Powers, 34 Hun, 221; Flagler v. Wheeler, 40 Hun, 125; Flagler v. Sehoeffel, Id. 178. If these rulings were erroneous, still the plaintiffs were not prejudiced, as the questions were subsequently answered by the witness.

The plaintiffs called one of the defendant’s assignors as a witness, who testified that he was employed by the defendant at a salary of $15 per week. He was then asked if he testified on an examination in supplementary proceedings as follows: “I suppose I am on a salary. There was no arrangement as to the amount I was to receive;” and he replied, “I might have sworn to it.” This was followed by the question: “If you did so swear, was it true?” This question was objected to, and the objection was sustained. It is quite apparent that the only purpose of this evidence was to affect the credibility of the witness by the proof of contradictory statements. As the witness was called by the plaintiffs, the evidence was not admissible for that purpose, (Becker v. Koch, 104 N. Y. 394, 10 N. E. Rep. 701;) if, however, the evidence was sought for any other purpose, the question in that form was objectionable, and the court in its discretion was justified in excluding the answer.

The defendant introduced in evidence the inventory of the firm of Scoville & Roe, under the plaintiffs’ objection and exception. The ruling of the referee in admitting this evidence seems to be justified. Adams v. Bowerman, 109 N. Y. 23, 15 N. E. Rep. 874. Besides, the same facts were proved by the plaintiffs on a direct examination of the witness Scoville.

It was nut error to permit the defendant’s assignor to testify that he did not purchase the goods in question with intent to cheat the plaintiffs, or with an intent not to pay for them. Seymour v. Wilson, 14 N. Y. 567; Cortland County v. Herkimer County, 44 N. Y. 22. The plaintiffs asked the witness Woolston this question: “Did^you rely upon this statement?” referring to the state-

ment that Scoville was worth $6,000. This was objected to and excluded. If this was error, it was harmless,'as the witness had already testified that “the conversation was to the effect that Mr. Scoville was personally worth six thousand dollars, and upon that I based my judgment in selling the goods. 1 sold the bill of goods on the information I got from Scoville direct. The purport of it was that Mr. Scoville was individually good for six thousand dollars.” This evidence shows clearly that the plaintiffs’ agent did rely upon, such statement in making the sale.

ITor do we think the refusal of the referee to permit the witness Woolstonto answer the following question: “ Did you believe this statement to be true?” requires a reversal of this judgment, as he was permitted to testify that he based his judgment on that statement in selling the goods, which shows clearly that he believed it. The statement sent by Wells to the Wilber Mercantile Agency was properly excluded. It was not admissible. The defendant’s assignors knew nothing of it, and were not shown to have any connection with it in any way. It was not evidence against them, nor was it proper evidence in the action against the defendant.

The counsel for the appellants has called our attention to 30 exceptions relating to the admission or rejection of evidence by the referee. Most of them seem not to have been deemed sufficiently important to merit any suggestion or remark by counsel, except to state the folio where found, and that they “were well taken.” We have, however, examined them all. The preceding considerations apply to maify and the most important of them. Our examination-of the remainder has led us to the conclusion that they neither require special discussion nor warrant a reversal of the judgment.

We are of the opinion that the decision of the referee is justified by the-evidence, and that no error was committed on the trial that would authorize, any interference with the judgment appealed from.

Judgment affirmed, with costs.

Hardin, P. J., and Merwin, J., concur in result.