Crew v. Bradstreet Co

• Decision Date: 07 April 1890
• Docket Number: 281
• Citation: 134 Pa. 161,19 A. 500
• Parties: J.L. CREW ET AL. v. THE BRADSTREET CO
• Court: Pennsylvania Supreme Court

19 A. 500

134 Pa. 161

J.L. CREW ET AL. v. THE BRADSTREET CO

No. 281

Supreme Court of Pennsylvania

April 7, 1890

Argued March 24, 1890

APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS NO. 3 OF PHILADELPHIA COUNTY.

No. 281 January Term 1889, Sup. Ct.; court below, No. 691 December Term 1884, C.P. No. 3.

On January 31, 1885, J. Lewis Crew and Lewis J. Levick, trading as Crew, Levick & Co., brought case against the Bradstreet Company, filing a declaration, which averred in substance that the defendant was engaged in carrying on the business of a commercial agency, and represented to the plaintiffs and the public that for certain fees and rewards it would use due diligence and care in ascertaining the financial standing of all persons and corporations doing business in the United States, and issue a book giving a statement thereof and of the amount of capital paid into the treasuries of the various corporations of the United States; that, relying on said representations, the plaintiffs subscribed to the said agency and purchased one of the said books, paying therefor the sum of $100; that it was the duty of the defendant to use great care and diligence in obtaining the information aforesaid and in printing the said book; but the defendant, not regarding its said duty to the plaintiffs, carelessly and negligently printed and published in said book that the Union Refining Manufacturing Company, a corporation of the state of New Jersey, had $600,000 capital paid in, and the plaintiffs relying upon said representation of the defendant, sold goods to said refining company on credit to the amount of $1,500 whereas the defendant had not used due care or diligence in ascertaining the pecuniary ability of said refining company and in printing and publishing said book, and said refining company did not have said amount of capital or any part thereof, but was at the time of publishing said book insolvent and not fit to be trusted with goods on credit; that said sum of money was wholly unpaid to the plaintiffs, and they were likely wholly to lose the same, to their damage, etc. The defendant's plea was not guilty.

At the trial, on October 30, 1888, the plaintiffs presented testimony tending to show the following facts:

For a number of years prior to 1884, the plaintiffs, whose place of business was in Philadelphia, were subscribers to a mercantile agency carried on by the defendant. On January 3, 1884, their subscription was renewed for the ensuing year, by a written contract signed by the plaintiffs, as follows:

"The Undersigned hereby employs The Bradstreet Company, from January 1, 1884, to January 1, 1885, to procure, to the best of its ability, information concerning the responsibility and character of Mercantile Persons inquired for, within the states represented in the volumes loaned, said inquiries not to exceed 200, except as hereinafter agreed. And in consideration of such service, including the loan of the January, 1884, July, 1884, 188 and 188 volumes of its U.S. & Ca. reports, the undersigned hereby agrees to pay The Bradstreet Company One hundred and twenty-five dollars, $62.50 each January 15, '84, and July 15, '84, and for each inquiry exceeding the 200 before mentioned, thirty-three and one third cents on demand. And it is further expressly agreed by the undersigned, that all information, whether printed, written or verbal, furnished by The Bradstreet Company to the undersigned, shall be held in strict confidence, and shall never be revealed to the persons reported; that the undersigned will neither ask for information for the use of other parties, nor permit it to be done; that the said company shall not be liable for any loss or injury caused by the neglect or other act of any officer or agent of the company, in procuring, collecting, and communicating said information; that the said company does not guarantee the correctness of the aforesaid information, and that the said volumes to be loaned, as aforesaid, shall be returned to the company, without notice from it, upon the receipt by the undersigned of any subsequent edition of its books, or at the expiration of the subscription term; . . . ."

About the middle of December, 1884, a salesman of the plaintiffs went to New York to sell a lot of parafine wax for the plaintiffs. His instructions were to sell for cash. Receiving from the Union Refining etc. Company an offer to purchase at thirty days' acceptance, he sent a telegram to the plaintiffs at their place of business in Philadelphia, stating the offer. Upon receiving this telegram, Mr. Levick, one of the plaintiffs, referred to the volume of reports issued by the defendant in July, 1884, which was furnished to the plaintiffs in pursuance of the contract of January 3, 1884, and found therein the statement that the refining company had "capital paid in, $600,000." Thereupon he telegraphed to the salesman to accept the offer. In pursuance of his telegram the sale was made, and the plaintiffs after shipping the goods drew on the purchaser for their price, $1,500, at thirty days.

Some days afterward, Mr. Crew, who was not present when the telegrams from and to the salesman were received and sent, learning of the sale of the wax, sent to the defendant for a special report as to the standing of the refining company, and received a reply stating that the company was reported by its president to have $20,000 paid-in capital and an indebtedness of about $5,000. He then sent to the defendant the following communication: "Gentlemen: We notice in your book you have the 'Union Refining & Manufacturing Co.,' Jersey City, rated as $600,000 capital paid in. In the report which we received from you to-day, you state that only $20,000 capital has been paid in. How are we to reconcile these two reports. We should be glad to hear from you." The reply to this letter was written at the foot thereof, and was as follows: "Typographical error in book, which should read auth. cap. $600 M."

The draft of the plaintiffs upon the Union Refining & Manufacturing Company was not paid at maturity nor thereafter. The plaintiff Levick testified that when it matured the company was insolvent; that, as the president had informed the witness, the company's works had been destroyed by fire and having no insurance it had lost thereby $15,000. The books issued by the defendant in July and October, 1883, and January, May, July and October, 1884, all contained the statement that the Union Refining & Manufacturing Company had a paid-in capital of $600,000.

At the close of the testimony for the plaintiffs, the court, GORDON, J., on motion of the defendant, entered a judgment of nonsuit, with leave, etc.

A rule to show cause why the judgment of nonsuit should not be taken off having been argued, the following opinion was filed, GORDON, J.:

The contract upon which suit is brought is that the defendants shall furnish information in reply to inquiries made by the plaintiffs, and in consideration of such service, including the loan of the January and July, 1884, volumes, the plaintiffs agreed to make certain payments. It is expressly stipulated in this agreement, "that the company shall not be liable for any loss or injury caused by the neglect or other act of any officer or agent of the company, in procuring, collecting and communicating said information; that the said company does not guarantee the correctness of the aforesaid information."

There seems to have been but one inquiry, and that was correctly answered; and, therefore, strictly construing the contract as relating only to information upon inquiries, the plaintiffs had no cause of action. It is contended, however, that the defendants are responsible for the false information contained in the July report. This volume makes no part of the defendants' duty under the contract. It is true that the loan of the book was paid for, but the information therein contained was in no way stipulated to be correct. Nor could it be inferred from the loan of the book that the subject matter of it was to be considered as written in the contract.

It is also contended that this contract, so far as it saves the defendants from liability for the falsity of the information furnished, is inoperative upon the ground of public policy. The defendants are private individuals, performing a private business for private persons. It gives them no privileges which every citizen has not, and imposes no duty which is not imposed upon the individual citizen. They are not compelled by the nature of their occupation to deal with any one; and no one has a right to compel them to take business. In other words, they perform no public functions and therefore owe no duties to the public.

This contract has already received judicial construction by Judge BUTLER: Duncan v. Dun, 7 W.N. 246. He says: "We understand the class of cases to which reference has been made by counsel, in which it has been held that a party shall not, cannot protect himself by such a saving clause against his own gross negligence. But these are cases in which public policy forbids such a rule; as, for instance, the cases of hotel keepers, common carriers and the like, who are engaged in a calling of a public nature. This is not of that description, in the judgment of this court; and this proviso is not therefore to be so read."

Thereupon the plaintiffs took this appeal, specifying the entry of the judgment of nonsuit and the refusal to take off said judgment for error.

The judgment is reversed, and a venire facias de novo awarded.

Mr. Theodore F. Jenkins, for the appellants:

1. This action was not upon the contract, but was in case for the defendant's negligence. The contract does not conclude the plaintiffs. In the first place it provides for...