O'Gorman v. Haber

• Decision Date: 06 December 1929
• Docket Number: No. 6698.,6698.
• Citation: 147 A. 882
• Parties: O'GORMAN v. HABER.
• Court: Rhode Island Supreme Court

147 A. 882

O'GORMAN

v. HABER.

No. 6698.

Supreme Court of Rhode Island.

Dec. 6, 1929.

Exceptions from Superior Court, Providence and Bristol Counties; Leonidas Pouliot, Jr., Judge.

Action by Thomas A. O'Gorman, Jr., against Jamil Haber. Verdict for plaintiff, and both parties bring exceptions. Defendant's exceptions overruled, and plaintiff's exception sustained, and case remitted, with directions.

John P. Beagan and Edmund F. Beagan, both of Providence, for plaintiff.

Henry D. Bellin and Edward W. Bradford, both of Providence, for defendant.

RATHBUN, J. This is an action of trespass on the case for deceit The trial in the superior court resulted in a verdict for the plaintiff for $1,500. The case is before us on exceptions filed by each of the parties. The defendant's exceptions are: To a ruling refusing to direct a verdict for the defendant; to the admission of evidence; to instructions to the jury; and to the refusal to instruct as requested. The plaintiff excepted to an instruction limiting the amount of damages to $1,500.

The defendant was president of the Interstate Chain Linen Stores, Inc. The declaration alleges that he, representing himself to have sole power and authority to act for the corporation, leased from the plaintiff in the name of said corporation a certain store, and stocked the same with goods; that the rent of said store became three months in arrears; that a check covering rent for one month was sent to the plaintiff, and returned by his bank for want of funds; that defendant and his attorney made pretense of tendering the amount due as rent, but refused to deliver the money when immediately informed that it would be accepted; that the property, both of the defendant and of said corporation, "was liable to attachment as security upon said liability; and said defendant, for the purpose of lulling the plaintiff into security and to cause him to refrain from making said attachment, was making said assurances and promises of making said tender good on various dates, and on said October 5th and October 8th, 1928, while at the same time said defendant was engaged in secreting and removing the assets of his or the said Chain Linen Stores, Inc. from and out of the premises, 222 Westminster Street, and for the purpose of avoiding the attachment of said goods and chattels at the expense of the plaintiff.

"The said plaintiff confiding and giving credit to said assurances, assertions and promises, believing the same to be true and relying thereon, not knowing the contrary thereof, did forbear to attach said goods and chattels, whereas in truth and in fact the said defendant at the time of said assurances and promises did not intend to make said tender good or pay said sum of money, and advanced said assurances and promises for the purpose of lulling the plaintiff into security, and said representations and assurances were intentionally false and fraudulently made with the intention to deceive the plaintiff and the plaintiff was thereby deceived."

It appears in evidence that the plaintiff had instructed his attorney to take such steps as were necessary to protect plaintiff's interests; that defendant called at plaintiff's office where defendant had a conversation by telephone with plaintiff's attorney. In this conversation defendant represented that he had the money and would pay the rent that day. Plaintiff's attorney replied to the defendant: "I have held off on this thing as long as I can. If you are going to come through on it you must do it now." Defendant then promised that he would call at said attorney's office at 3 o'clock of the same day and pay $1,000 on account of said rent. The attorney replied: "You bring either a certified check for this thousand dollars or cash. Nothing else will be taken." Defendant failed to keep the appointment, and made no further payment on account of the rent. During the nighttime of the same day he removed all of the stock of goods from said store to a point without the state.

From all of the evidence we think the jury were warranted in finding that the defendant, knowing that the plaintiff was about to attach said stock, made the promise to pay without any intention of keeping the promise and for the sole purpose of avoiding an attachment by gaining sufficient time to remove said stock of goods without the state. The defendant offered no evidence, and it is clear from the testimony submitted by the plaintiff that he was induced, by the defendant's promise and representation of an intention to pay, to forego his right and intention to attach immediately. The plaintiff has not received any part of the rent due at the time said promise and representation were made.

The main question presented is whether on the above statement of facts the plaintiff can maintain an action for deceit. This is not an action for promises broken. The question is: Did the defendant, with knowledge of its falsity, make a false representation of a material fact for the purpose of inducing the plaintiff to act upon the representation, and did he rely and act upon it to his damage?

The false representation relied upon was the false representation of an intention to pay. In Swift v. Rounds, 19 R. I. 527, 35 A. 45, 46, 33 L R. A. 561, 61 Am. St. Rep. 791, it was held that an action of deceit lies if a person purchases and obtains goods on credit having an intention not to pay for them. It was held that, by obtaining goods under such...