Smill v. Weiss

PER CURIAM.

Hyman Smill brought an action in the Cuya-hoga Common Pleas alleging fraudulent representations on part of Joseph Weiss and others. The judgment in the Common Pleas was in favor of Weiss and on proceedings in error the following question was raised:

“Did the court err in rejecting testimony offered' by Smill respecting the sale of the assets of the corporation by the receiver appointed by the court, and the proceedings in the cause?”

It seems that evidence of this nature was presented, first by offering the record of the receivership case which would show that the petition in that case was filed Oct. 25, 1921; and that summons was served the following day on Jacob Weiss as president of the defendant company and that the entire assets of the corporation were sold to Joseph Weiss for $6500. The trial court rejected this evidence so offered. On Aug. 17, 1921, Smill paid $6500 for one third interest in these same assets. The Court of Appeals held:

1.This is a case wherein a fraudulent intent upon part of the defendant is alleged. The subsequent conduct of any of the defendants may be offered as an admission against interest, to the same extent as if there were a declaration made by word of mouth, by any of the defendants and relating to past transactions.

2. One of the representations set forth in Smill’s petition as being false was as to the value of the assets and the condition of the company; and though evidence offered is not conclusive upon the question of fraudulent representations, it is clearly competent and' admissible.

3. Cases which involve charge of fraudulent representations necessitate a more liberal policy as to the introduction of evidence upon that subject.

4. Subsequent acts or declarations which have any tendency to, bear upon the question should be admitted,; and from all the facts and circumstances presented the court must make a finding. Judgment reversed and cause remanded. ;-,' , ,