Patrick v. Leach

• Decision Date: 14 May 1879
• Citation: 8 Neb. 530,1 N.W. 853
• Parties: MATTHEWSON T. PATRICK, PLAINTIFF IN ERROR, v. DAVID W. LEACH, DEFENDANT IN ERROR.
• Court: Nebraska Supreme Court

8 Neb. 530

1 N.W. 853

MATTHEWSON T. PATRICK, PLAINTIFF IN ERROR,

v.DAVID W. LEACH, DEFENDANT IN ERROR.

Supreme Court of Nebraska.

Filed May 14, 1879.

Error from Douglas County.George W. Doane and J. M. Woolworth, for plaintiff in error.

J. C. Cowin and John D. Howe for defendant in error.

MAXWELL, C. J.

--On the twenty-sixth day of February, 1875, David W. Leach filed a petition in the district court of Douglas county against Mathewson T. Patrick, wherein he alleges that on the eighteenth day of December, 1872, Patrick sold to him a large stock of hardware which was stored in a building in the City of Omaha; that Patrick presented to him an inventory of said goods, and represented to him that they were first-class goods and of the best quality, and that the stock was selected by an expert employed by himself for that purpose, out of a stock, in New York City, of two hundred thousand dollars; that the stock was selected for the purpose of establishing, in Omaha, a general hardware business, wholesale and retail, and that the prices affixed to said goods in said inventory were the lowest wholesale market prices in the City of New York; that he represented to him that he paid said expert for making said selection two and one-half per cent. of the amount of the purchase, amounting to six hundred and fifty-six dollars and seventy-five cents; that he paid one hundred and forty-four dollars for packing, one hundred and fifty dollars for cartage, two hundred and fifty dollars for boxes and casks, and one thousand four hundred and sixty dollars freight; that Patrick took him to the building where the goods were stored and showed him a large number of boxes and casks which he stated to him contained the goods in question; that the boxes and casks, with one exception, were closed up, and had the appearance of being new and newly packed; that defendant stated to him that he would not open them as he had another trade in view in case he and the plaintiff failed to agree on terms, but that the goods were as he represented them to be, and he guaranteed and warranted the goods to be as represented; that the plaintiff was not acquainted with the hardware business, but relying entirely upon the representations of the defendant, and upon his guaranty and warranty, and upon the inventory, and without making an inspection for himself he purchased the stock of goods described in the inventory, and paid the defendant therefor as follows:

+-----------------------------------------------+
                ¦Sum total of inventory,             ¦$26,232 75¦
                +------------------------------------+----------¦
                ¦E. M. Allen, Hardware Expert,       ¦656 75    ¦
                +------------------------------------+----------¦
                ¦6 Packers, 8 days, at $3.00 per day,¦144 00    ¦
                +------------------------------------+----------¦
                ¦50 Cart loads,                      ¦150 00    ¦
                +------------------------------------+----------¦
                ¦Boxes and Casks,                    ¦250 00    ¦
                +------------------------------------+----------¦
                ¦Freight,                            ¦1,460 00  ¦
                +------------------------------------+----------¦
                ¦                                    ¦$28,893 50¦
                +-----------------------------------------------+
                

Less the sum of four hundred and twenty dollars for goods withheld by Patrick. The plaintiff also alleges that the representations made to him by the defendant were false and fraudulent; that said goods were not first-class goods, but were of a very inferior and almost worthless quality, all of which the defendant well knew at the time he made the representations aforesaid, and that said representations were so made for the purpose of cheating and defrauding the plaintiff; that the entire stock of said goods were not worth more than three thousand dollars. The plaintiff therefore asks judgment for the sum of twenty-six thousand dollars, and interest.

The defendant, in his answer, admits the purchase by the plaintiff of the goods in question; admits the goods were not first-class goods; admits a nominal payment of the same of the sum of twenty-two thousand three hundred and forty-five dollars, but specifically denies all other allegations of the petition. The defendant alleges that the stock was sold nominally at a very high price, and was paid for in land at a nominal valuation of twenty-two thousand three hundred and forty-five dollars, but which was in fact worth but twelve thousand seven hundred and seventy-five dollars, and the plaintiff's note for __________ dollars, the plaintiff being insolvent. The defendant also pleads a settlement of all matters in difference between the plaintiff and defendant on the seventh day of April, 1875, and the payment to the plaintiff of the sum of one...