Murfey v. Brace

By the Court, T. R. Strong, J.

The decision of the referee upon the objection to the question to the witness Salsman, as to what Sampson, the assignor of the defendants, said to him in regard to trading with Williams, Bradford & Oo., was correct. The offer connected with the question, explains what the plaintiffs proposed to prove, and all that was excluded by the decision was, the declaration of Sampson that that firm had refused to trust him without security, and he did not intend to buy any more goods of them. That was wholly immaterial in this case. It would not have tended to prove any representation to the plaintiffs concerning his circumstances, any intention on his part to defraud the plaintiffs, or any fact essential to be established by them. So far as he said any thing about his circumstances, proof of it was allowed by the referee.

There was nothing in the cross-examination of the witness which rendered the evidence excluded proper, when it was again offered on his re-examination.

I think the decision of the referee, excluding the testimony of Sampson, who was called as a witness by the defendants, on his cross-examination, as to representations in respect to his circumstances to Phillips do Spencer at their store, about the time of his last purchase of the plaintiffs, was also correct. The .question to the witness on that subject is not limited, and does not point to any transaction he had with the firm; it was not proved, or proposed to be proved, that he purchased any goods of that firm on credit; on the contrary, it appeared that he paid for the goods he bought of them at the time of the purchase. There is no pretense that he defrauded, or intended to defraud, that firm. Mere naked declarations of Sampson, in regard to his circumstances, unaccompanied by any act of his, alone, were sought to be proved. If proof of such declarations would tend to prove any thing in this case, it must be, that Sampson made similar declarations to the plaintiffs. But it would have no such tendency. It may not have been necessary for him to say any thing as to his circumstances, to effect his purchases of the plaintiffs ; if any representations relating to them were made, they may have been of an entirely different character. There would be no safety in concluding from what he said to one firm, that he said the same things to another firm. If such evidence was admissible, on the trial of an indictment for false pretenses in purchasing goods, the pretenses might be proved by showing that on the purchase of goods of another person, about the same time, such pretenses were made.

It is supposed by the counsel for the plaintiffs, that the evidence was admissible on the principle upon which, on questions of fraud in the sale or purchase of property, similar transactions of the alleged fraudulent party with other persons, about the same time of the transaction in question, may be proved. (Cowen & Hill’s Notes, 452, 3; 465 and cases cited. Allison v. Mathieu, 3 John. 234. Benham v. Cary, 11 Wend. 83. Cary v. Hotailing, 1 Hill, 311.) But there the object is to prove the quo animo—the fraudulent intent in the act in question; and other contemporaneous transactions may be pertinent, and materially aid in ascertaining the motive, of that which is the subject of inquiry. In Cary v. Hotailing, Cowen, J., says, “ on questions of intent to defraud, other acts similar to the offense charged, done at or about the same time, or when the same motive to offend may reasonably be supposed to have existed as that which is in issue, are admissible with a view to the quo animo.” In this case the object of the evidence is to prove specific declarations. The difference between the cases is obvious.

[Monroe General Term, March 2, 1857.

The evidence as to the representations made by Sampson, under which the goods were purchased, is conflicting; it presented a fair question for the decision of the referee; and it is a most salutary rule, that the decision of a referee upon a question of fact, especially of fraud, where there is evidence on both sides, and the point is not entirely free from doubt, cannot be disturbed.

This disposes of all the questions raised on the argument, and the judgment must be affirmed.

T. R. Strong, Welles and Smith, Justices.]