Cohn v. Broadhead

• Decision Date: 03 June 1897
• Citation: 71 N.W. 747,51 Neb. 834
• Parties: COHN ET AL. v. BROADHEAD ET AL.
• Court: Nebraska Supreme Court

51 Neb. 834

71 N.W. 747

COHN ET AL.

v.BROADHEAD ET AL.

Supreme Court of Nebraska.

June 3, 1897.

Syllabus by the Court.

1. In order to authorize the rescission of a sale on the ground that it was induced by the false representation of the vendee, such representation must be made as to an existing fact, and not relate to something promised to be done by the vendee in the future.

2. A merchant ordered goods of a wholesale dealer, promising to pay one-half the price of the goods on receipt of the same, and the remainder at a day named in the future. He did not pay on receipt of the goods as promised, but the merchant did not intend, at the time the promise was made, not to pay for the goods. Held, that the facts did not warrant the conclusion that the sale was induced by the fraudulent representation of the vendee.

3. A merchant stated to a commercial agency that, in his opinion, his stock of goods was worth $8,000. The commercial agency communicated this opinion to a wholesale dealer, and at the same time informed the latter that, while the opinion of the merchant was given in good faith, he had placed too high a value on his stock. The wholesale dealer nevertheless relied upon the opinion expressed by the merchant, and sold him goods on credit. The goods were worth $5,000. Held, that the facts did not warrant the conclusion that the sale was induced by the fraudulent representation of the vendee.

Error to district court, Lancaster county; Hall, Judge.

Replevin by William Broadhead & Sons against Louis M. Cohn and others. From a judgment for plaintiffs, defendants bring error. Reversed.

Stevens & Cochran, for plaintiffs in error.

Ricketts & Wilson, for defendants in error.

RAGAN, C.

This is an action in replevin brought to the district court of Lancaster county by William Broadhead & Sons against Louis M. Cohn et al. Broadhead & Sons had a verdict and judgment, and Cohn et al. prosecute to this court a petition in error. There are several assignments of error argued in the brief, only one of which we deem it necessary to notice, namely, that the verdict of the jury is not supported by sufficient evidence. On the 30th of August, 1892, Broadhead sold and shipped a bill of goods to Cohn. The goods were received and placed in Cohn's store, and more than half of them sold and disposed of, in the ordinary course of business, prior to the 26th of September, 1892. On this last date Cohn became embarrassed, and executed a mortgage on his goods, including the goods purchased of Broadhead and remaining unsold, to one Spiesberger. Broadhead & Sons then attempted to rescind the sale of the goods to Cohn, and replevied them, claiming that Cohn procured the sale and delivery of the goods by false representations. The evidence relied upon by Broadhead to sustain his theory that Cohn obtained the goods by false representations was, first, that Cohn promised, in consideration of the sale of the goods to him, to pay one-half their purchase price on the receipt of the goods, and the other half on the 1st of October. It is not claimed that the agreement was that the title to these goods should remain in Broadhead until half the purchase price, or any of it,...