Dulaney v. Rogers

• Decision Date: 31 October 1876
• Citation: Dulaney v. Rogers, 64 Mo. 201 (Mo. 1876)
• Parties: D. M. DULANEY, et al., Respondents, v. E. H. ROGERS, et al., Appellants.
• Court: Missouri Supreme Court

64 Mo. 201

D. M. DULANEY, et al., Respondents,

v.E. H. ROGERS, et al., Appellants.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Cooper County Circuit Court.

Hayden & Tompkins, for Appellants, cited: Pasley vs. Freeman, 2 Smith's Lead. Cas. p. 138; Jollife vs. Collins, 21 Mo. 342; Wakeman vs. Dalley, 8 Johns. 23; 10 Am. R. 551 (same case, 51 N. Y. 27); Oberlander vs. Sperrs, 45 N. Y. 169; Meyer vs. Armidon, Id. 175; Lord vs. Godard, 13 How. 198; Russell vs. Clark, Exr's, 7 Cr. U. S. 69.

Draffin & Williams, for Respondents, cited: Cabot vs. Christie, 42 Vt. 121; Dunn vs. Oldham's adm'r, 63 Mo. 181; Wakeman vs. Dalley, 51 N. Y. 27; Myer vs. Armidon, 45 N. Y. 69; Marsh vs. Falker, 40 N. Y. 562; 2 Hil. Torts, 146, § 11.

NORTON, Judge, delivered the opinion of the court.

This was a suit brought to recover damages for an alleged fraudulent representation, in writing, as to the solvency of one Burger. It is charged in the petition that defendants, for the purpose of giving said Burger credit, gave to him a statement in writing as follows:

“PILOT GROVE, MO., Sept. 8, 1873.

We, the undersigned citizens of Pilot Grove, and county of Cooper, State of Missouri, would hereby recommend to the favorable consideration of any lumber firm in Hannibal, Mo., Mr. Wm. H. Burger as being every way responsible and a good business man, and we believe and recommend him as a prompt and reliable gentleman.”

It is further alleged that said statement was on the 13th of September, 1873, presented to them at Hannibal, Mo., where they were engaged in business as lumber merchants, by said Burger, who requested them to sell him lumber on credit; that between the 13th of September and the 28th of November of said year, relying on the representations contained in said statement, they were thereby induced to sell to said Burger the sum of $2,502 87; that the statement in regard to the solvency of Burger was not true, but that he was wholly insolvent, and that defendants knew that said statement was not true; by means of all which, plaintiffs had sustained damages to the amount of $865.

The answer of defendant admitted the execution of the writing set out in the petition, and denied all other allegations contained therein. On the trial plaintiffs obtained judgment, from which defendants have appealed.

The principal error complained of is in the action of the court in giving and refusing instructions, especially the following one which was given, viz: “It is admitted by the pleadings that defendants made the written representation concerning the solvency of W. H Burger, read in evidence, and if the jury shall find from the evidence that the plaintiffs were, at the time stated in the petition, copartners in business, and that Burger presented the paper to plaintiffs, or either of them, and asked for credit for lumber, and that the plaintiffs, or any one of said firm, relying upon said representations were induced by the same to sell to said Burger the lumber mentioned in the petition, on credit; and if the jury shall further find from the evidence that the said representations were not true, and that Burger was in fact insolvent, and that defendants at the time knew that he was insolvent, and not in any way responsible, or that they represented that they knew him to be in every way responsible when they were aware of the fact that they did not know whether he was solvent or insolvent, then the jury ought to find a verdict for the plaintiffs for any loss or injury they may have sustained by reason of said false representations.”

The written instrument offered in evidence and signed by defendants, who as the proof shows were neighbors of Burger, was an open letter of credit to any lumber merchant in Hannibal, Mo., containing the assertion that Burger was in every way responsible. It was dated on the 8th of September, and the record shows that it was accompanied with a certificate, signed by E. H. Harris the postmaster at Pilot Grove, certifying that the signers thereof are land owners and citizens of Pilot Grove township, and worth at least sixty-five thousand dollars. It cannot be questioned that the purpose of this statement was to enable Burger to purchase lumber on credit on the strength of the representation it contained in regard to his solvency. A distinct affirmation was made, (not simply an expression of opinion or belief) that he was in every way...