Weil v. Schwartz

• Decision Date: 05 April 1886
• Citation: 21 Mo.App. 372
• Parties: ISAAC WEIL ET AL., Respondents, v. JOSEPH SCHWARTZ, Appellant.
• Court: Kansas Court of Appeals

21 Mo.App. 372

ISAAC WEIL ET AL., Respondents, v. JOSEPH SCHWARTZ, Appellant.

Court of Appeals of Missouri, Kansas City.

April 5, 1886

APPEAL from Jackson Circuit Court, HON. F. M. BLACK, Judge.

Reversed and remanded.

Statement of case by the court.

This is an action to recover damages alleged to have been sustained by plaintiffs by reason of the false and fraudulent representations and assurances of defendant respecting the credit of one J. B. Isaacson.

The petition alleges substantially, that plaintiffs, a partnership firm doing business as merchants at the city of St. Joseph, Missouri, were applied to on the twenty-seventh day of February 1882, at St. Joseph by said Isaacson, a merchant doing business at Kansas City, Missouri, to purchase a bill of goods on a credit of four months; and not being acquainted with the financial standing, etc., of said Isaacson they addressed to the defendant, a mutual friend and acquaintance, a merchant at said Kansas City, the following letter:

" ST. JOE, MO., February, 27, 1883.

Mr. Joseph Schwartz, Kansas City, Mo.:

MY DEAR SIR: How is J. B. Isaacson, 507 Main street, Kansas City? Is he good for a bill, say five hundred dollars, four months? Telegraph at our expense.

Yours etc.,

I. WEIL & Co."

To which the defendant sent the following answer by telegraph:

" KANSAS CITY, MO., 2-28-1883.

I. WELL & Co.: Consider J. B. Isaacson good for all the goods he wants.

Jos SCHWARTZ."

Whereby it is alleged, the defendant intended to deceive and defraud plaintiffs into giving said credit, by falsely inducing them to believe that said Isaacson was good for all the goods he might purchase, and that defendant believed him to be worthy of credit; well knowing at the time that the representation so made was false, that said Isaacson was not good and worthy of credit as therein stated; and that relying upon said representation so made they were induced to make the sale, on a credit of four months, of a bill of goods amounting to the sum of five hundred and twenty-four dollars. It is also alleged that before and at the time of sending said telegram the said Isaacson was wholly insolvent, and the defendant then and there well knew the fact; that Isaacson has failed to pay for the goods, according to contract; whereby a cause of action has accrued to plaintiffs to demand and recover the same from defendant, etc.

The answer tendered the general issue.

The principal facts developed at the trial, about which there is no material conflict of evidence, showed the sending and receipt of the letter, and the telegram in answer thereto, and the sale of the goods as alleged. Plaintiffs' evidence tended to show that at the time of sending the telegram Isaacson was possessed of little, if any, property outside of the goods he was buying on credit, that he was practically insolvent, and that defendant knew these facts.

On the twenty-first day of March, 1883, the plaintiffs, having learned that Isaacson had given a chattel mortgage on his stock of goods, wrote to defendant, making inquiry thereof. To which defendant answered, in substance, that defendant had bought a safe on which there was such mortgage, and that this fact gave rise to the rumor, and proposed, that for ten per cent. he would guarantee the payment of plaintiffs' claim, as Isaacson was " O. K. and solid." This offer was declined. During that summer Isaacson bought goods on credit of parties in Chicago, and in July his stock was seized under writs of attachments sued out by said Chicago creditors, and the mother-in-law and sister-in-law of defendant and the defendant himself, by virtue of which Isaacson's entire stock of goods were sold, and appropriated by said attaching creditors.

Plaintiffs' evidence tended to show that the said claims, of defendant, the mother-in-law and sister-in-law, were fictitious and fraudulent as to the creditors of Isaacson.

Plaintiffs also introduced evidence tending to show that during season of 1882 defendant had made false statements to the commercial agency of Dun & Company, of Chicago, touching the responsibility and credit of Isaacson, on the faith of which Isaacson had obtained the credit in Chicago and elsewhere.

Defendant gave evidence in contradiction.

On behalf of plaintiffs the court gave the following instructions to the jury:

" 1. If you find from the evidence that the defendant, in answer to an inquiry made by the plaintiffs, sent to them the telegram read in evidence; that the defendant Isaacson was not then good for, or was not worthy of credit for a bill of goods of five or six hundred dollars; that defendant then knew that Isaacson was not good for that amount on a credit, or knew that he was unworthy of a credit of that amount; that defendant made the statement in said telegram for the purpose of deceiving the plaintiffs; that the plaintiffs were thereby induced to and did sell said Isaacson a bill of goods for about five hundred dollars on a credit, relying on the truth of said statement; and that the plaintiffs have been damaged by the false representations, then you should find for the plaintiffs."

" 2. In determining the questions of fact submitted to you by these instructions, you will take into considation all the facts and circumstances in evidence, and give to them such weight as you believe they are entitled to have. The fact that defendant offered to guarantee the debt of the plaintiffs for ten per cent. thereof, does not defeat a recovery in this case, if you find the facts stated in the various instructions to be true."

" 3. If you find for the plaintiffs, you will assess their damages at such an amount as they have sustained by reason of the said representations of the defendant, not exceeding the amount of the bill of goods sold to Isaacson, with six per cent. interest thereon, from the time the same became due to this date."

" 4. Before the plaintiffs can recover in this cause it must appear to your satisfaction by a fair preponderance of the evidence, that the statement made in said telegram was contrary to the fact; that Isaacson was not good for or was not worthy of credit for the amount of the bill of goods sold to him by the plaintiffs; that defendant knew that Isaacson was not good for such a bill on credit, or knew that he was unworthy of credit to that extent; that the telegram was sent, as it was, for the purpose of deceiving plaintiffs, and that the plaintiffs were thereby, in connection with what had previously transpired between them and defendant, induced to make the sale to Isaacson."

The defendant asked the following instructions:

" 1. The jury are instructed that the validity of Schwartz's, the defendant's, debt against Isaacson is not an issue in this case."

" 2. If the jury believe from the evidence that, at the time defendant sent the telegram to plaintiffs, John B. Isaacson was good for the amount of goods plaintiff sold him, the verdict must be for defendant."

" 3. Fraud is not to be presumed, must be proved, and before the plaintiffs are entitled to recover, they must satisfy you by a preponderance of evidence that John B. Isaacson was not good for the amount of goods plaintiff sold him, at the time defendant sent the telegram, and that defendant knew that he was not good; that defendant sent the telegram with the fraudulent intent to induce plaintiffs to act on it; that plaintiffs were ignorant of Isaacson's condition, and relied on defendant's telegram in making the sale, and were induced so to do, by reason thereof; that, in consequence of defendant's false representations, they have been damaged."

" 4. If the jury believe from the evidence that after the defendant had sent the telegram, and after plaintiffs had sold Isaacson the goods, defendant offered to guarantee the whole of plaintiffs' claim against Isaacson for ten per cent., and plaintiffs' declined to accept the same, then plaintiffs are not entitled, in any event to recover against defendant, more than ten per cent. of the amount of their said claim."

" 5. If the jury believe from the evidence that, at the time defendant sent the telegram, he believed Isaacson to be good for the amount of plaintiffs' bill, and that said telegram was not sent with the intent to deceive or defraud plaintiffs, then the verdict must be for defendant, even though the jury may further believe, from the evidence, that Isaacson was insolvent prior to the maturity of plaintiffs' bill, and that said bill has never, in fact, been paid."

" 6. The validity of the indebtedness of Mary Perlinsky, or Paulina Jacobs, against John B. Isaacson, is not in issue in this case."

" 7. Before the plaintiffs can recover a verdict for anything in this case, you must find, from a fair preponderance of evidence, that the representations contained in the telegram sent by defendant to plaintiffs were false, to the knowledge of the defendant, and that they were made intentionally to deceive and induce the sale of goods by plaintiff to John B. Isaacson on credit. In other words, before plaintiffs are entitled to a verdict, you must be satisfied from all the evidence: (1) That the representations contained in the telegram were contrary to the fact, and that John B. Isaacson was not at the time good for the amount of goods plaintiffs sold him. (2) That defendant knew said representations were contrary to the fact at the time they were made. (3) That it was the false representations that gave rise to the sale of the goods by plaintiffs to Isaacson. (4) That said Isaacson had not, at the time of the institution of this suit, sufficient means in this county subject to attachment or execution out of which plaintiffs could make their debt."

The court gave only the instruction number five, and after adding the words, " and...