Field v. Berlizheimer
| Decision Date | 31 October 1881 |
| Citation | 9 Ill.App. 464,9 Bradw. 464 |
| Parties | MARSHALL FIELD ET AL.v.NATHAN BERLIZHEIMER ET AL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. R. S. WILLIAMSON, Judge, presiding. Opinion filed November 29, 1881.
This was an action of assumpsit, brought by Marshall Field and others against Nathan Berlizheimer and another, to recover a balance claimed to be due the plaintiffs upon an account for merchandise sold and delivered by them to the defendants. The defendants pleaded a discharge in bankruptcy, and to this plea the plaintiffs replied that the defendants, for the purpose of inducing the plaintiffs to sell them said merchandise on credit, made to the plaintiffs a statement in writing of their financial condition and standing, and therein and thereby stated and represented to the plaintiffs that they then had in their store a stock of merchandise of the value of $10,000, and had good notes and accounts of the value of $150; that they were indebted to the International Bank of Chicago for borrowed money in the sum of $500, and to other persons besides the plaintiffs, for merchandise in the sum of $987.67, which said sums were all the defendants then owed; that relying upon said statements of the defendants, and believing them to be true, the plaintiffs sold and delivered to the defendants the merchandise in question on credit; that said statement, at the time it was made, and at the time of the sale and delivery of said merchandise, was wholly untrue, false and fraudulent; that the defendants did not then have a stock of merchandise of the value of $10,000, but that their stock then on hand was worth only about $4,000; that the defendants then owed for borrowed money about $4,000, over and above the said $500 mentioned in said statement, all of which was then and there well known to the defendants; and that said statement was falsely and fraudulently made by the defendants for the purpose, and with the intent on their part, of cheating and defrauding the plaintiffs out of their said merchandise.
On the trial before a jury, it appeared in evidence that the defendants being already considerably indebted to the plaintiffs, and desiring further credit, were requested by the plaintiffs to make a statement of their financial conditions, and that in response to such request, Nathan Berlizheimer, one of the defendants, came to the plaintiffs' store, where a statement in substance as charged in the plaintiffs' replication, was drawn up, and signed by said Nathan Berlizheimer, it being therein declared that said statement was made for the purpose of obtaining credit with the plaintiffs for merchandize, which the defendants might then or thereafter purchase of them.
Subsequently, and on the faith of said statement, as is claimed, the plaintiffs, from time to time, sold the defendants merchandize on credit, and the defendants made to the plaintiffs sundry payments, by which the indebtedness existing at the date of the statement was extinguished, and the subsequent account reduced to $815.60. Evidence was also introduced tending to show that at the time said statement was made, the defendants' stock of goods was worth much less than the sum represented, and also, that they were then indebted to one Lowenthal, for borrowed money, in the sum of about $4,000, and that said indebtedness still remained unpaid.
Among the instructions given to the jury by the court at the instance of the defendants were the following:
“3. The court instructs the jury as a matter of law, that although they find from the evidence in this case that the defendant obtained a credit by false representations in writing made and by him signed, and that such credit so obtained led to the debt upon which this suit is brought; yet, if they further find that the plaintiffs became apprised and knew of the fraud practiced upon them, and with such knowledge accepted part payment of such debt, and continued to do business with the defendant, and subsequently instituted this suit to recover the unpaid balance, that then, in the law, such fraud is waived and confirmed, and your verdict must be for the defendants.
5. The court instructs the jury that before a discharge in bankruptcy can be avoided upon the ground that the debt was created by the fraud of the bankrupt, it must be shown by a preponderance of evidence that the debt, as a whole, was created by fraud; and that if, from the evidence in this case, you find that the debt sued upon is made up in part of an honest debt and in part of a fraudulent debt, and you are unable to distinguish, and by your verdict say how much of said debt was created in fraud, your verdict must be for the defendant.
6. The court instructs the jury that before they will be justified in finding against the discharge in bankruptcy, it must have been shown by a preponderance of evidence that the statement made was in the main or in some essential matter false and untrue; that the defendant knew it to be false and untrue when he signed it; that he, knowing it to be so, gave it to the plaintiffs for the purpose of inducing them to part with their property, and that the plaintiffs parted with their property entirely upon the strength of this statement; and that the plaintiffs, at the time of parting with their property upon the strength of this statement, believed it to be true, and that the defendant, as stated, knew it to be false and untrue.
7. The court instructs the jury that if, from the evidence, they believe that the defendant, at the time of making the different purchases going to make up the debt for which this suit was brought, made such purchases in good faith, intending to pay the same, and did not make any false statement or statements respecting their financial standing or ability, to induce the plaintiffs to sell the goods to him, then your verdict must be for the defendant.”
The foregoing instructions were duly excepted to by the plaintiffs. The verdict of the jury was for the defendants, and the court, after denying the plaintiffs' motion for a new trial, gave judgment in favor of the defendants for costs.
Mr. GEORGE W. PLUMMER, for appellants; that where the verdict is clearly against the preponderance of evidence a new trial will be granted, cited Ill. Cent. R. R. Co. v. Chambers, 71 Ill. 519; Blake v. McMullin, 91 Ill. 32; Gordon v. Crooks, 11 Ill. 142; C. B. & Q. R. R. Co. v. Gregory, 58 Ill. 272; Reynolds v. Lambert, 69 Ill. 495; Chicago v. Lavalle, 83 Ill. 482; Drury v. Dungan, 2 Bradwell, 15.
Upon discovery of the fraud a party may rescind the contract, or he may affirm it and claim compensation for the injury he has sustained by the fraud: Peck v. Brewer, 48 Ill. 54; Herrin v. Libby, 36 Me. 350; Whitney v. Allain, 1 Comst. 305.
An instruction upon a state of facts which there is no evidence to prove, is erroneous: Bradley v. Parks, 83 Ill. 169; American v. Rimpert, 75 Ill. 228; Howe S. M. Co. v. Layman, 88 Ill. 39.
It is not proper in an instruction to submit to the jury the question of a party's rights under a contract: Belding v. Woodmansee, 81 Ill. 25; Ogden v. Kirby, 79 Ill. 555; Kamphouse v. Gaffner, 73 Ill. 453; C. B. & Q. R. R Co. v. Hale, 2 Bradwell, 150; Shugart v. Halliday, 2 Bradwell, 45.
It is only necessary to show that the goods were sold, and credit given by reason of the representatives made: 2 Parsons on Con. 773; Addington v. Allen, 11 Wend. 374; Young v. Hall, 4 Ga. 95; King v. Fitch, 2 Abb. Ct. App. 508.
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