George L. Storms & Co. v. Horton

• Decision Date: 16 December 1904
• Citation: 59 A. 421,77 Conn. 334
• Court: Connecticut Supreme Court
• Parties: GEORGE L. STORMS & CO. v. HORTON.

59 A. 421

77 Conn. 334

GEORGE L. STORMS & CO.

v. HORTON.

Supreme Court of Errors of Connecticut.

Dec. 16, 1904.

Appeal from Court of Common Fleas, Hartford County; John Coats, Judge.

Action by George L. Storms & Co. against Frederick B. Horton for goods sold and delivered. From a judgment in the court of common pleas affirming a judgment rendered before a justice of the peace for plaintiff, and from an order denying a new trial, defendant appeals. No error.

Hugh O'Flaherty and Francis P. Rohrmayer, for appellant.

Herbert O. Bowers, for appellee.

HALL, J. The pleadings in this case are in effect as follows: The complaint and bill of particulars charge the defendant with an indebtedness of $122.74 for goods sold, and credit him with $49.10. The answer alleges that the $49.10 was paid and received under a compromise agreement, in full settlement of the defendant's account. The reply avers that the plaintiff was induced to make such agreement and accept said payment by the false and fraudulent representations of the defendant that he was in financial difficulty and was able to pay but 40 per cent. of his indebtedness, and that he could not possibly raise a larger sum than the amount of such percentage. The defendant's rejoinder denies that such representations were false and fraudulent. Concerning the compromise agreement and the payment and acceptance of the $49.10, the plaintiff offered evidence in the trial court to prove these facts: On the 25th of February, 1903, the defendant, who was engaged in the drug business in this state, and was indebted to the plaintiff in the sum of $122.74 for goods sold, wrote, by his attorneys, to the plaintiff, in New York, that he was in financial difficulty; that his liabilities were over $6,500, and his assets about $1,500; that, by aid from his friends, he could offer a cash settlement of 25 cents on the dollar; that, if this offer was not accepted by his creditors on or before the 28th of that month, he would be compelled to go into bankruptcy, in which case his creditors would not be able to realize more than 10 per cent of their claims. On the 4th of March, said offer not having been accepted, the defendant by his attorneys, wrote the plaintiff that, after an investigation by some of the principal creditors and friends of the defendant, they had concluded that it was possible to pay 40 per cent. but that there was no possibility of raising a larger amount, and that if the offer of 40 per cent. was not accepted, the defendant would be compelled to go into bankruptcy. The plaintiff, relying upon the truth of said representations, accepted said offer by letter on the 12th of March, and the next day the defendant's attorneys sent their check to the plaintiff for $49.10, which stated upon its face that it was "in full settlement of F. B. Horton [the defendant] account." The plaintiff accepted the check, and it was duly paid. On the 18th of March the defendant, by his same attorneys, wrote letters to George F. Bassett & Co. and Acker, Merrall & Condit, New York creditors of the defendant, inclosing checks for 75 per cent. of their respective claims against him, and stating, among other things, that the two prior offers of lesser sums submitted to them had been ignored; that defendant's indebtedness amounted to $4,400; that he had inventoried his stock at $2,800, but that experts thought it worth no more than $2,000, and that this, with a horse and carriage, possibly worth $250, was all the property he owned; that one Donaghue, one of his creditors, had advanced him the sum of $2,500, taking a bill of sale of the store as security; and that the remainder of the 75 per...