Newell v. Randall

• Court: Minnesota Supreme Court
• Writing for the Court: Mitchell, J.
• Citation: Newell v. Randall, 32 Minn. 171, 19 N.W. 972 (Minn. 1884)
• Decision Date: 09 June 1884
• Parties: George R. Newell v. A. E. Randall

19 N.W. 972

32 Minn. 171

George R. Newell v. A. E. Randall

Supreme Court of Minnesota

June 9, 1884

Appeal by defendant from an order of the district court for Big Stone county, Brown, J., presiding, refusing a new trial.

Order affirmed.

Woolley Biddle & Reed, for appellant, cited 2 Pomeroy Eq. Jur §§ 901, 906; Bigelow on Fraud, 31; Dambmann v Schulte, 75 N.Y. 55; 1 Story Eq. Jur. § 207; Van Arsdale v. Howard, 5 Ala. 596; 2 Parsons on Cont. 366; Bell v. Ellis, 33 Cal. 620; Lupin v Marie, 6 Wend. 77, 83; Smith v. Smith, 21 Pa. 367; Backentoss v. Speicher, 31 Pa. 324; Redington v. Roberts, 25 Vt. 686; Irving v. Motly, 7 Bing. 543; Cross v. Peters, 1 Greenl. (Me.) 376; Bidault v. Wales, 19 Mo. 36; Cochrane v. Halsey, 25 Minn. 52.

Lane & Dodge, for respondent.

OPINION

Mitchell, J.

Action of replevin, plaintiff alleging himself to be the owner and entitled to the possession of the personal property in controversy. Defendant, by his answer, denies plaintiff's ownership and right of possession, and alleges that it was the property of one Bauman, and justifies his taking, as sheriff, by virtue of certain writs of attachment against the property of Bauman. In reply, plaintiff alleges that he sold the property to Bauman on credit, induced so to do by false and fraudulent representations of Bauman as to his financial condition, which rendered the sale voidable, and gave him the right to rescind and reclaim the property. On the trial it was undisputed or sufficiently proved that this property was sold by plaintiff to Bauman on credit. It also appeared that about the first of August, 1881, Bauman, who was in trade at Ortonville, applied to plaintiff's travelling agent, De Laittre, to purchase goods on credit; that De Laittre told him that "it would be necessary to know how he stood;" that Bauman said, in response to this, that "he had three thousand dollars in his business, consisting of merchandise and book-accounts, and that he had three hundred dollars in cash." On this De Laittre took his order, and submitted it, together with his statement, to plaintiff, who, on the strength of it, shipped him the goods.

On the trial no evidence was offered to show that Bauman did not in fact have merchandise and book-accounts, to the amount of $ 3,000, and $ 300 in cash. But it was proved that, at the time he made the statement, he was indebted in his business to the amount of $ 2,100, -- a fact which he failed and omitted to state. It also appears that, early in November following, Bauman was largely indebted on various other overdue debts, on which suits were brought against him, and his property attached; but as it does not affirmatively appear when these debts were contracted, they cannot here be considered.

It is earnestly contended that this evidence is insufficient to establish plaintiff's allegation that Bauman obtained the goods by fraud; that he was not inquired of as to his debts and that no duty was imposed on him to make a voluntary statement in regard to them. It is doubtless the general rule that a purchaser, when buying on credit, is not bound to disclose the facts of his financial condition. If he makes no actual misrepresentations, if he is not asked any questions, and does not give any untrue, evasive, or partial answers, his mere silence as to his general bad pecuniary condition, or his indebtedness, will not constitute a fraudulent concealment. 2 Pom. Eq. Jur. § 906; Bigelow on Fraud, 36, 37. But this was not a case of mere passive non-disclosure. The object of De Laittre's inquiry clearly was to...