Reynolds & Wires v. French , 11 Vt. 674 ( 1839 )

The opinion of the court was delivered by

Collamer, J.

The plaintiffs insisted, and gave evidence tending to prove, that the fraud practised on them, and by which they were induced to give up the notes, upon part payment, was this ; that the defendant, French, stated to them that he had turned out all his attachable property in security or payment of his other debts, leaving nothing on which the plaintiffs could levy. They also gave evidence tending to prove, that a part of French’s attachable property had been turned out and delivered to persons who had no debts, colorably and upon secret trust for French. The defendant, then, should have been confined to disproving these things, that is, he might prove that French did not state as the plaintiffs alleged, or that they were not thereby deceived but gave up the notes on other considerations, or that what French stated was true, in this, that the property was not'his or was actually turned out on bona fide debts. The defendant was permitted, though objected to, to prove that the butter, for the purchase of which the notes were given, was of inferior quality, that he paid the plaintiffs all it brought in the market, and that he so told the plaintiffs. This was no error. It was testimony tending to show that the plaintiffs wer thereby induced to give up the notes, on the ground that they would have suffered the loss, had they not sold the butter to the defendant. And if the jury were convinced that the plaintiffs were operated upon, by this consideration, in what they did, then they were not defrauded.

The defendant was also permitted, though objected to, to prove that he owed others, besides the plaintiffs, to an amount as great as all of his property. This most clearly did not tend to prove that he had not made entire false statements to the plaintiffs, nor that they were not thereby deceived. Unless French’s attachable property had been turned out on these debts, it did not lessen the fund from which the plaintiffs could have enforced payment. It did not, in any way, sustain the truth of any of the statements of which the plaintiffs complained, nor tend to show that they did not rely thereon. Its admission was, therefore, error, and, for this,

Judgment is reversed.