Harvey v. Smith

• Decision Date: 06 December 1861
• Citation: 17 Ind. 272
• Parties: Harvey and Others v. Smith
• Court: Indiana Supreme Court

17 Ind. 272

Harvey and Others v. Smith

Supreme Court of Indiana

December 6, 1861

APPEAL from the Knox Circuit Court.

The judgment is affirmed, with costs.

L. Q De Bruler and J. C. Denny, for the appellants.

J. G Jones and J. E. Blythe, for the appellee.

OPINION

Worden J.

This was an action by Smith,the appellee, against the appellants, to recover damages for false and fraudulent representations alleged to have been made by the defendants to the plaintiff, on the sale by them to him of a newspaper establishment.Demurrer to the complaint overruled, and exception.Issue; trial; verdict and judgment for the plaintiff.

In the brief of counsel for the appellants, three points are relied upon for a reversal.First, That the complaint was insufficient.Second, That the evidence did not sustain the verdict; and, Third, That the kind of judgment rendered, was unauthorized.

The complaint is quite lengthy, but enough of it will be set out to present the ground of objection.It is alleged that on, &c., at the county of Knox, "the defendants, under the name and style of Harvey, Mason & Co., were joint owners and partners in a certain newspaper and printing establishment in the city of Vincennes, known as the Vincennes Gazette, which said newspaper the defendants before and at that time published and issued to subscribers daily, at the rate of six dollars per annum, and weekly at the rate of two dollars per annum, per copy; and in connection therewith, had before and at that time done and performed various kinds of advertising and job work.And the said defendants being then and there desirous of selling their right to publish and issue said paper, daily and weekly, as also the good will, subscription list and patronage of said Gazette establishment, as also all the privileges, rights, appurtenances, tools, materials, fixtures, furniture, and property of every name, nature, description and kind, used and appertaining, and in any wise belonging to said Gazette establishment, and before and at that time employed and used in and about said office, offered to sell the same as aforesaid to the said plaintiff; and to induce the plaintiff to become the purchaser thereof, did falsely and fraudulently say and represent to the plaintiff, that the number of paying subscribers to the daily Gazette exceeded three hundred; and that the number of paying subscribers to the weekly Gazette was at least one thousand; when, in truth and in fact, the said representations were false and fraudulent, and well known to said defendants so to be at the time they were made, in this, that the number of paying subscribers to said daily Gazette did not exceed, at that time, one hundred and thirty-seven, and the number of paying subscribers to said weekly Gazette did not exceed six hundred.And, as the plaintiff further states, the said defendants did then and there falsely represent to the plaintiff, that the subscription list and advertising patronage of the daily Gazette paid the entire expenses of the Gazette establishment, leaving the subscription list and advertising patronage of the weekly Gazette clear profit; all of which said statements were false, and so known to be by said defendants at the time they were made.

And the said defendants then and there represented that they had, about four years before that time, purchased the Gazette establishment at a cost of four thousand dollars, and that they had afterward purchased the "News of the Day" printing office, at a cost of fifteen hundred and fifty dollars, and had also purchased twelve to fourteen hundred dollars' worth of new material, all of which they had paid for from the profits of said Gazette establishment, and had also drawn therefrom the sum of six thousand dollars in cash, and had then owing to them about five thousand dollars, all from the profits of said establishment; all of which representations as to the profits, patronage, business, and subscription list of said Gazette printing office, were false, and well known by the defendants to be false, at the time they were made.And the plaintiff, relying upon the truth of the representations aforesaid, did then and there become the purchaser of said Gazette establishment, the good will, subscription list, &c. of the said Harvey, Mason & Co., at and for the sum of four thousand and five hundred dollars.And the plaintiff avers that the presses, types, fixtures, and furniture, and materials of every description and kind, were then and there worth not to exceed two thousand dollars, and that the only consideration for the remainder of said purchase money, to wit: twenty-five hundred dollars, was the good will, subscription list, and patronage of the Gazette establishment, and the right to publish and issue said paper.And the plaintiff avers that while he could examine for himself the presses, materials, type, furniture, and property of the said Gazette establishment, he could derive no information as to the expense of said printing establishment, or as to the number of subscribers to the daily or weekly paper, or as to the amount of advertising or job work of said establishment, and the profits they had realized therefrom, except from the defendants themselves, the plaintiff then and there being a physician, and not familiar with such business, and the costs of conducting the same, or the profits arising therefrom, as the defendants well knew; and that the plaintiff did not know any thing of the manner in which the defendants kept their accounts of receipts or expenditures, or whether any such accounts were kept, separate from their other business; and the plaintiff states that he is informed and believes that the defendants did not keep their books in such manner as would have enabled him to determine the truth or falsity of the representations as to the business income and profit of said Gazette establishment, prior to that time; and the plaintiff further states that he would not have made said purchase if he had not believed said representations as to subscriptions, advertising, job work, &c., and the profits arising therefrom to be true, as the defendants then and there well knew.And the plaintiff further avers that said false and fraudulent representations were made in pursuance of a previous fraudulent combination between the members of said firm of Harvey, Mason & Co., to deceive and defraud the plaintiff."

The complaint alleges that the plaintiff, at the time of the purchase, paid the defendants the sum of fifteen hundred dollars thereon, and executed to them his notes for the remaining three thousand dollars, and a mortgage on the establishment to secure the payment thereof.

The objections made to the complaint may be best gathered from the following extract from the brief of counsel for the appellants:

"It will be observed that the complaint does not charge that the defendants made any false or fraudulent representations to the plaintiff as to the quantity, quality, or condition of any materials of the Gazette office, sold by them to him; but only that the subscription list was not, in point of fact, as large as the defendants represented it to be; and...