28 N.Y. 103, Adams v. Sage

Citation:28 N.Y. 103
Party Name:ADAMS & CASWELL v. SAGE and others.
Case Date:September 01, 1863
Court:New York Court of Appeals
 
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Page 103

28 N.Y. 103

ADAMS & CASWELL

v.

SAGE and others.

New York Court of Appeal

September 1, 1863

Page 104

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Page 105

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Page 106

COUNSEL

John H. Reynolds, for the appellants.

Smith & Cornwell, for the respondents.

OPINION

ROSEKRANS, J.

The allegations in the complaint which were verified by the plaintiffs, and the evidence introduced by them, show clearly that the plaintiffs had full information and knowledge of all the facts which constituted the fraud of which they complain, in regard to the sale of pork by Suydam, Sage & Co. to the plaintiffs, prior to the commencement of the action brought by the plaintiffs to recover the sums they had advanced on account of such fraudulent sales. It is distinctly averred that the plaintiffs received this information from their own agent, who negotiated the purchase for them, about the 26th day of July, 1842; that they believed his statement; that in consequence of it they proceeded to the city of New York and had an interview with Suydam, Sage & Co. in regard to the matter; and that because Suydam, Sage & Co. did not give the plaintiffs any satisfactory explanation, they commenced their suit against Suydam, Sage & Co. in the same month of July or in August, 1842, to recover the moneys advanced on the fraudulent purchase, believing that the sale was a mere pretense,

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or, if actually made, that it was made after Suydam, Sage & Co. had received the plaintiffs' letter countermanding their order for the purchase of the pork, and revoking the authority of their agent to make the purchase. It also appears from the plaintiffs' evidence, that within fifteen days after the commencement of such suit, Suydam, Sage & Co., in a letter which they wrote to the plaintiffs, of the date of August 12, 1842, contradicted the statements made to the plaintiffs by Hotchkiss, their agent, in regard to the fraudulent sale, and denounced them as misrepresentations, and proposed an amicable settlement of the suit. And that notwithstanding this the plaintiffs, relying upon the truth of the statements of Hotchkiss, proceeded in the action and noticed it for trial at the circuit in December, 1842. Indeed it appears that as early as May, 1842, the plaintiffs had an interview with Suydam, Sage & Co. at their counting room, in the city of New York, in which the plaintiffs contended that the sale of the pork to Hotchkiss was unfair, and alleged that they did not believe Suydam, Sage & Co. had the pork on hand for sale, and that the accounts rendered by Suydam, Sage & Co. to the plaintiffs, of the sales of the pork by them...

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