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. perhe equities here are manifestly with the

could reclaim them even from attaching cred- jamin & Co. and the report made to Braditors. In support of their title, they under- street's Agency in 1892, then it became and took to make proof of what Cohen had stat- was the duty of said Cohen, before purchased to the commercial agencies, of what Ben- ing said goods of the plaintiffs, to make a jamin & Co. had communicated to them, and statement to the plaintiffs of the change of the amount of assets which Cohen had which had taken place in his financial conwhen he bought the goods. For this purpose, dition; or if you believe from the evidence they put Cohen and the clerks of the agen- that, at the time of the purchase of said cies on the stand. When the clerks who col- goods in controversy from the plaintiffs, the lected the information were produced, they said Cohen had no reasonable expectation were asked what Cohen had stated concern- of paying for the same, and you further being his affairs. Only one of them produced lieve from the evidence that the plaintiffs his report to the agency. The other brought sold the goods to said Cohen relying upon the what purported to be a copy. Neither of statements made by said Alfred Benjamin them undertook to state precisely what & Co. and the said report of said Commercial Cohen had said. They could only testify Agency, then, in that case, it is your duty that, when they made their inquiries, they to find for the plaintiffs.” Acting under took down certain memoranda, and from these instructions, the jury found with the those memoranda were able to speak gen. plaintiffs, and the attaching creditors aperally about his statements. The reports pealed. which were furnished to Hirsh, Elson & Co. were produced. When the plaintiffs endeav- diligent creditors who instituted the suits to ored to show by Cohen that the statements collect their debts, and the appellees are not were not true, they met with very little suc- entitled to maintain their judgment, even cess. The invoice of the sheriff, which was though the facts may have justified the verprobably not very much in excess of the dict, unless the jury were aptly and correctvalues, very clearly showed that the stock ly instructed respecting the law. We are not was worth in the neighborhood of $11,000. prepared to concede either proposition. We The only difference between the representa- should not, however, disturb the judgment tions and the facts, if any, lay in the dif- because we disagreed with the jury, but for ference between his statement of the value of the legal errors apparent in the record. Comhis realty and its actual worth. Cohen's evi- mercial agencies are well-recognized instrudence was the only proof on this subject. It ments in the commercial world for the transwas proven by an abstractor that he had no action of business between different places. title to the lots in Hartman's addition, but They probably subserve a useful end, and in it was clearly demonstrated that Cohen had many ways are advantageous to those who traded for the Broadway Terrace. This are engaged in commerce. In the quick and property was worth as much as the lots. rapid transactions of modern times, they are This we must assume, for there was no evi- very much relied on to settle the question of dence disputing it. Cohen was interrogated the responsibility of the merchant who seeks concerning these statements in July, and tes- to trade with the wholesale and jobbing tified to their accuracy and their truth. He house. Their means are, doubtless, subject likewise testified that he purchased the goods to criticism, and they are often used to the in good faith, and intended to pay for them detriment of the merchant, as well as to his when he bought them. There is nothing to advantage. As an original proposition, I impeach this statement, unless we are at lib- should be very much inclined to doubt erty to assume it to be inaccurate because he whether, in the absence of a specific purpose subsequently failed to pay and was found to on the part of the buyer to deceive a parbe insolvent when the parties attempted, by ticular seller, a statement made to a commertheir attachments, to realize enough to pay cial agent, even though the agent might reall the claims.

port it to his foreign correspondent, could be When the case was concluded, the court made the basis of an action for false repregave several instructions to the jury. The sentations. I should also question whether a jury were told that if they believed the vendor could rescind a sale on the hypothesis statements were false, and Cohen's condition that he had been led to make it because of was not as he gave it, and the plaintiffs, re- what was reported to him by the agency, lying on the reports, sold the goods, they without ample and satisfactory proof that must find for them. The court further told the statement was made to the agency with the jury, even though they might find from both knowledge and intention on the part of the evidence that the statements were sub- the vendee that it was to be transmitted or stantially true when made, yet if after- furnished to that vendor. There are, how. wards Cohen's financial condition was sub- ever, some cases which declare the doctrine stantially changed, and the jury believed and hold that a representation made to a com"that, at the time of the purchase of the said mercial agency without reference to any imgoods in controversy from the plaintiffs by mediate transaction between the one making said Cohen, the financial condition of said it and some other, may still be proven by a Cohen was substantially different from the vendor who, relying on it, makes a sale after report and statement made by Alfred Ben- he has received a report which embodies sub

V.S9P.pn.3--23

stantially what the merchant has said. We , subject. The first was entirely destroyed by are not disposed to dissent from the author- Cohen himself, who was put on the stand ities on this subject. We prefer to say that, by the plaintiffs. It appeared from his testi. admitting that this is the law, vendors who mony that the July statement concerning the rely on it to set aside sales as against attach- Hartman lots was absolutely true. After ing creditors must make clear and satisfac- that date the lots were not sold, but were tory proof both of the representations and traded for other improved property in Broadtheir falsity. The trouble with most of these way Terrace, which was of equal value. agencies is this: they do not rely on what That much, then, of his statement, was not the merchant has stated as much as they do false. It is assumed by counsel that they on the general information respecting his have a right to eliminate the real-estate value financial status, which they are able to gather from this statement in order to demoustrate in the community. The reporters combine the falsity of his representations. The arguwhat has been stated with what they bave ment is a non sequitur. The representation been able to learn, and many times color it that he owned the lots was accurate. His as their interests or information may war- opinion of the value was another proposirant; so that, when the report reaches the tion. On it a false representation can hardly foreign correspondent, it is a far differ- be based. The difference between the facts ent thing from an accurate transcript of and the statement which Cohen made about what the home merchant has said. Prob- the Chicago property was unsubstantial. ably the reports which are furnished the There is another matter to which atten. vendor would be admissible as an element in tion must be directed before the general the proof, but they must be supplemented principles of law wbich will be applied to by evidence of the actual representations the instructions can be understandingly which were made by the buyer. This would stated. There was nothing in the evidence not be accomplished by producing the reports to show that Cohen had any design to dewhich the clerks made to the home office. fraud Hirsh, Elson & Co. when he bought The evidence in this regard must be a sub- the goods. The case is barren of proof stantial narration of the buyer's statements, even tending in that direction. The only which, in turn, must be in effect, if not in thing which admits of that construction, or accurate restatement, reproduced in what of an argument respecting it, must be was furnished the seller. The rules of evi- drawn from the fact that, when his assets dence permit no other method of proof, and were seized by the sheriff, they did not yield the rights of attaching creditors cannot be on execution sale enough to pay his debts, affected unless the vendor can sustain his -a circumstance which would probably aptitle by clear and convincing evidence of the ply to the property of most men in business fraud of the vendee. The burden should be if they

suddenly called upon to placed on the vendor. He has parted with liquidate. In fact, Cohen directly testified the possession of his goods. The sale is that he purchased the goods in good faith, complete. Credit is given. The purchasers and fully intended to pay for them. This have a title which is indefeasible if they got he might have done but for the pressure of title at all. To invalidate the transaction, the panic, which had then already comthe seller relies on the falsity of a statement menced to be felt. which was made to an agency, and was This statement and argument must satismade perhaps months before the transaction fy the professional mind that the court did in question, and virtually to the public gener- not instruct the jury in accordance with the ally, and without specific intent. It is not law. There are two phases of the instrucinequitable to require him to make close, tion which is quoted to which attention strict, and satisfactory proof both of the rep- must be directed. The jury were told subresentations and their falsity. The testi- stantially that if they believed from the evimony in the present case did not rise to that dence that Cohen, at the time of the purlevel in either particular. The clerks who chase, had no expectation to pay, their verclaimed to have interviewed Cohen were pro- dict must be for the plaintiffs. This does duced. Their memory of what he said was not accord with the law. The instruction neither clear, accurate, nor positive. But lacks a fundamental element required by waiving the unsubstantial and unsatisfactory all the cases, to wit, a design not to pay. character of their evidence, which should Some of the authorities undoubtedly go to have been submitted to the jury with in- a great length in requiring definite proof of structions respecting it, the case lacked evi- facts from which the intention not to pay dence of the falsity of the representations. can be fairly and easily demonstrated. Oth

The plaintiffs produced one witness who ers lack that vigor of expression, and will had examined the records and failed to find permit the jury to infer the design and in. the lots in Hartman's addition which Cohen tent not to pay, providing they find from the said he owned. There was some discrepancy proof enough to satisfy them that the intenbetween the facts and what one of the agen- tion existed. Some, perhaps, go still fur. cy's employés said concerning Cohen's state- ther, and permit the jury to infer the intent ment respecting the title to the Chicago prop- not to pay from proof of the insolvency or erty. Nothing further was offered on this the buyer at the time of the purchase; but

were

there is no well-considered case which we solutely bankrupt, or has reached a finanapprove which permits an instruction in the cial condition which would warrant the inform which the court adopted in this case. ference and amount practically to proof of a A reasonable expectation not to pay is not design not to pay, and render the transacenough. The jury ought to have been care- tion a fraud on the seller, he may withhold fully instructed that they must find the buy- information of his condition. No such case er had the intent and design not to pay at is presented. If there was any change in the time he made the purchase or the title Cohen's condition, there was no such radiwould pass.

Gavin v. Armistead, 57 Ark. cal alteration as would even tend to estab574, 22 S. W. 431; Reticker v. Katzenstein, lish a fraudulent purpose. There was noth26 Ill. App. 33; Armstrong v. Lewis, 38 Ill. ing to evidence a design not to pay. The App. 164; Morrill v. Blackman, 42 Conn. language of the instruction "if they found 324; Garbutt v. Bank, 22 Wis. 384; Zucker Cohen's condition substantially changed" v. Karpeles, 88 Mich. 413, 50 N. W. 373; was not sufficiently guarded, restricted, and Redington v. Roberts, 25 Vt. 686; Swarth- well defined. The court left out of it the out v. Merchant, 47 Hun, 106; Hotchkin v. idea which should have been its controlling Bank, 127 N. Y. 329, 27 N. E. 1030; Bank feature, to wit, the fraudulent purpose. v. Bamberger, 77 Tex. 48, 13 S. W. 959; This is more manifest from the conclusion Manufacturing Co. v. Keeler, 65 Hun, 508, which directs the jury to find with the 20 N. Y. Supp. 388; Klopenstein v. Mulcahy, | plaintiffs if they conclude Cohen had no rea4 Nev. 296; Smith v. Smith, 21 Pa. St. 367. sonable expectation to pay. The folly of These cases, with many others, hold the the principle is apparent. No merchant necessity of proof of a fraudulent intent struggling under difficulties could survive on the part of the buyer at the time of the a communication of this sort 24 hours. Ev. transaction. Few of the states go to the ex- ery creditor would become a suitor, and tent of the Pennsylvania cases. Personally, every suit would be begun by attachment. I am not prepared to quarrel with that The instructions were erroneous. court. They have rested their decisions on For the errors which were committed by a broad and impregnable basis. To entitle the trial court, as they have been stated, the vendor to rescind the sale, as against this case will be reversed, and remanded for the subsequent vendee or attaching cred- a new trial in conformity with this opinitor, when he has parted with the posses- ion. Reversed. sion of his goods, he should be able to show an actual artifice and design whereby he was misled; otherwise the sale must

(5 Colo. App. -489) stand. If all the cases pursued this well

GOMER v. STOCKDALE. defined policy, there would be much less (Court of Appeals of Colorado. Feb, 11, 1895.) litigation of this description. We do not so SUIT BY ASSIGNEE Real PARTY IN INTEREST declare the law, because the current is the

PLEADING AND PROOF- RIGATS UNDER MORT

GAGE- ASSERTIOX UNDER GENERAL DENIAL. other way, but we do insist that there must

1. The assignee of a claim may sue therebe some proof of design, or some evidence

on as the “real party in interest," though the offered from which the jury would be at assignment is on condition that when the claim liberty, under well-defined and well-stated is collected the whole, or some part, must be rules of law, to find that the intent existed.

paid over to the assignor.

2. Defendant sold the timber on her land, In this case there was no such proof. The

taking as security for the purchase-price notes jury would not have been warranted on the a mortgage on the mill machinery to be used in case made to find the existence of such sawing the timber. Thé vendee failed to pay intent. It

the notes when due, and assigned his interest was expressly negatived by

under the contract to plaintiff, who sued for the Cohen's own testimony, and by all the cir- value of certain lumber and the machinery cumstances surrounding the transaction. which defendant had seized. Held, that defendThe other part of the instruction which

ant should plead the mortgage, to entitle her to

assert her full rights under it. has been quoted is subject to even stronger criticism. In it the court left the lerel of

Error to district court, Arapa hoe county. common every-day life, and entered a moral Action by Philip P. Gomer against Laura region with which few men are familiar.

E. Stockdale. There was a judgment for de The jury were told that if, after Cohen had fendant, and plaintiff brings error. Re made his statements to the commercialagen

versed. cies, he found his financial condition alter- J. W. Horner, for plaintiff in error. Joh): ed, so that in some substantial respect his S. Gibons and G. S. Raymond, for defend statement would not be true, he was bound ant in error. to publish the fact of his insolvency. There is no such responsibility. As a general BISSELL, P. J. During the year 1887, proposition, the buyer is under no obligation Laura E. Stockdale was the owner of some whatever to furnish unsought information lands in Park county, and Matthew O. Jackeither as to his present or his changed con- son was a mill man engaged in making lumdition. We do not intend to decide that , ber. In August the parties made an agree when there have been dealings between the ment which, in respect to those terms essenparties, and the purchaser has become ab- tial to the decision, substantially provided that Jackson might erect his mill machinery cuted for Jackson's benefit. It was not preand such temporary structures as were es- tended, nor was any evidence introduced to sential to his milling operations on certain establish, that, because of the agreement beparts of the land. The owner also sold him tween Gomer and Jackson, the defendant the tree tops, and the cut and standing tim- was prejudiced, or had any defense which ber, with the right to fell the trees and re would not have been available against Goduce them to lumber. The consideration on mer as well as against Jackson. It was asJackson's part was represented by 13 prom- sumed that if Gomer paid no valuable conissory notes, of $500 each, maturing month- sideration for the assignment, and Jackson ly, beginning with the 10th of September, was to receive the benefit, Gomer must, of 1887. To secure payment of this paper, necessity, fail in the suit. There was some Jackson agreed to give a mortgage on the loose evidence tending to show that some of mill machinery. He executed this security. this stuff had been taken under attachment, Jackson paid only a part of the note that but there was nothing which would warrant matured in November, and defaulted on the a finding that it had been thus taken. In other notes. Afterwards, by a written in- fact, counsel admitted during the progress of strument, he sold and transferred to the the trial that part of the property had come present appellant, Gomer, all his rights and into the defendant's possession. On the coninterest under the contract. At the time he clusion of the evidence, the court charged ceased operations, there was considerable the jury that if they should find the bill of lumber at the mill, amounting to about 40,- sale was not made in good faith, and that 000 feet, and some 30,000 feet of unreduced it was without any consideration, Gomer logs, either at the mill or cut in the woods. would not be the real plaintiff; and if they Subsequent to the transfer, Gomer made de found, under those circumstances, that he mand for the lumber and the logs, and, was simply a nominal plaintiff, they must when the owner refused to surrender, brought find for the defendant. this suit. It is very peculiar in its form and Whatever may be the equities of the case, in the structure of the pleadings, which do or the real fact concerning the responsibility not seem to be well adapted to the protec- | of the defendant, it is manifest the question tion or preservation of the defendant's rights. was not necessarily settled by the verdict of The plaintiff set up title to the lumber and the jury. The whole case, in the minds of the logs as a first cause of action, alleged the jury, may have turned directly on the the taking and removal by the defendant question as to the character of the transacStockdale, stated the value, and prayed judg- tion between Gomer and Jackson. There ment. The second cause of action was of was evidence enough offered to raise a susthe same nature, though it related solely to picion in the minds of the jury that Gomer the mill and its machinery, and the tem- and Jackson had arranged to maintain this porary structures occupied by the men. In suit in Gomer's name, for the recovery of the the answer to the first cause of action, the value of the lumber and the logs, hoping agreement was set up, the execution of the thereby to escape any responsibility on Jackmortgage stated, and it was alleged on be- son's part for a failure to carry out his conhalf of the defendant that the taking was tract, other than what was enforceable by vir. under and pursuant to thn authority con- tue of the chattel mortgage. The testimony ferred in the mortgage. There was a gen-concerning the transaction between Gomer eral denial, and another defense which is and Jackson was not very satisfactory in .past easy apprehension. It was stated that these particulars, and it is very manifest the the transfer to Gomer was without consid- plaintiff was prejudiced by the court's ineration, and the action was prosecuted in struction on this subject. There is much the interest of Jackson. As a defense, of controversy in the various states respecting course, it amounted to nothing, although it that almost universal code provision, that a seems to have been of considerable force in suit must be prosecuted in the name of the the progress of the trial. So far as con- real party in interest. Until the true concerned the second cause of action, which re- struction of that act is settled in any parlated to the mill, the defendant denied gen- ticular state, there is much room for discuserally. On these issues the parties went to sion. It has been often adjudged that the trial. The plaintiff proved the amount of term "real party in interest" is but a synlumber and logs at the mill, in the woods onym for the phrase the “person having the cut and ready for reduction, and the value. legal title.” It has accordingly been decided He produced the transfer, and proved the that it is no infraction of this statute to consideration, which was apparently the set- bring the suit in the name of the person to tlement of some debts between Gomer and whom the claim has been assigned, whether Jackson. The defendant introduced no tes. it be an open account or otherwise, although timony at all. There was an attempt, by the there may be annexed to the transfer the cross-examination of the plaintiff's witness-condition that, when the sum is collected, es, to show that, as between Gomer and the whole or some part of it must be paid Jackson, the transfer was not made in good over to the assignor. Bliss, Code Pl. 51. faith, for a valuable consideration; that the Meeker v. Claghorn, 44 N. Y. 319; Allen v. assignment was colorable, and the suit prose- | Brown, Id. 229; Bassett v. Inman, 7 Colo. 270, 3 Pac. 383. Since this doctrine pre-, judgment and decree for plairtiff, defendvails in Colorado, it is clear Gomer had a ants Auld and McCorkle appeal. Reversed. right to bring the suit on the transferred On the 19th day of October, 1892, appelclaim. The agreement between Gomer and lee, Charles E. Quincy, and W. F. Reed, by Jackson, concerning the disposition of the a written agreement, became partners, for proceeds, did not affect the recovery. Of purchasing, feeding, handling and marketcourse, if the transfer in any wise operated | ing cattle, for a term of five years. Appel. to restrict the defense which Stockdale could lee, a ranchman, leased to the partnership, set up, it might be a different matter. Noth- for the purpose of pasturage, three tracts of ing was pleaded which in any manner tends pasture land, aggregating about 5,700 acres. to raise such a question, and this is all that By the terms of the contract, appellee was can be said about it.

to furnish the land as his contribution to the In answering the second defense, the de- capital of the firm, free of rent and charge. fendant simply denied generally the allega- Quincy agreed to furnish as many cattle as tion of the complaint. This second cause of could be handled profitably, at the market action concerned the mill and its machinery, price of cattle, take entire charge of the and was brought to recover for its taking. cattle, and manage the entire business, inIf, as would appear from the record, all this cluding the employment of assistants, the property was seized under the chattel mort- purchase of new stock, and the sales of catgage which Jackson had executed, that in- tle. Reed was to furnish the money necesstrument, if valid, would protect the defend- sary for current expenses of the partnership, ant from a suit for damages for its removal. not to include the purchase of cattle; the It is questionable whether, under the gen-profits of the business to be divided equally eral denial, the defendant could make the between the three partners. Pursuant to proof essential to the protection of her inter- such agreement, on the 21st of October, ests, as against that cause of action. From Quincy brought to the ranch of Travis 603 the entire record, it is very clear to us the head of cattle, and placed them on the fields security should be pleaded and proven in designated in such contract. On October order that the defendant might have the full 28th he brought other 444 head of cattle, benefit of whatever claim she could rightful- and disposed of them in like manner.

On ly assert under it. Since this case must be the premises set apart upon the contract, reversed, and the time has gone by in which Travis bad cut and stacked a quantity of an application could be rightly made in this hay estimated at 400 tons. Such hay was direction, the judgment will be reversed, measured by Travis, and turned over by him with leave to the parties to apply to the low-to. Quincy for the use of the partnership, er court for a correction of the pleadings on for which he was to receive pay proportionboth sides, as they may be advised. For ately from his partners, at the rate of $1.50 the error committed by the court in its in- per ton, for so much as was used. Upon structions to the jury, the judgment will be measurement there was found to be about reversed, and the case remanded. Reversed. 280 tons, all of which was fed to the stock.

Under the contract, Quincy took entire con

trol of the supervision, management, and (5 Colo. App. 535)

feeding of the cattle, employing and controlAULD et al. v. TRAVIS.

ling all help. Travis turned over the posses(Court of Appeals of Colorado. Feb. 11, 1895.)

sion of the different tracts of land desigAGISTMENT-LIEN-Priority.

nated, and the hay, but exercised no conT., Q., and another became partners for

trol or supervision whatever. The cattle marketing oattle. Q. was to furnish as many were bought by Quincy from appellants, cattle as could be profitably handled, and man- Auld and McCorkle, upon credit, and a chatage the business, and T. was to furnish his ranch as his share of the capital, while the oth

tel mortgage was executed by him to secure er partner was to provide the money for current

the purchase price. On the 16th of March expenses. Q. bought 1,000 cattle on time, se- following it is alleged the cattle were at cured the price by chattel mortgage thereon, tached as the property of Quincy on a writ and placed them on the land, on which T. had a large quantity of hay, which he turned over to

from Arapahoe county. Thereupon, under the firm under an agreement that he should re- the provisions of the mortgage, appellants ceive pay at $4.50 per ton for so much as was took possession of the cattle, or, being about used. T. received from his partners a sum in

to take such possession and remove them, excess of two-thirds the agreed price of the hay. Held, that T. had no agistor's lien on the cattle | appellee brought this action, alleging in his for feeding them, which was superior to the complaint: (1) That he was a ranchman; lien of the mortgagees, under 2 Jills' Ann. St. that on October 21 and 28, 1892, Quincy & 2854 (Gen. St. § 2118), as amended by Acts

brought to his ranch, and intrusted to him 1889, p. 232, which provides that any ranchman, farmer, etc., to whom any cattle shall be for the purpose of feeding, pasturing, and intrusted for feeding, shall have a lien on keeping, the 1,047 head of cattle; that the such animals for the sum due therefor.

cattle were by him, as agistor, pastured and Appeal from district court, Saguache coun- kept until the 17th of March, 1893, and that

the pasturage was worth $1,534.40; that Bill by Dewitt C. Travis against W. T. from and after December 3, 1892, he, at the Auld and others for an injunction. From a special instance and request of Quincy, fed

ty.

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